S Africa faces ICC rul­ing over Su­dan’s Pres­i­dent

Kuwait Times - - INTERNATIONAL -

War crimes judges will to­mor­row hand down an ea­gerly an­tic­i­pated rul­ing on whether South Africa flouted in­ter­na­tional law by fail­ing to ar­rest Su­danese Pres­i­dent Omar Al-Bashir in 2015, wanted for geno­cide in Dar­fur. The land­mark de­ci­sion will serve as a blue­print for fu­ture co­op­er­a­tion be­tween coun­tries and the In­ter­na­tional Crim­i­nal Court, ex­perts say. It will also high­light that the tri­bunal based in The Hague can only func­tion with the sup­port of its mem­ber states and the back­ing of the UN Se­cu­rity Coun­cil.” The rul­ing is... fun­da­men­tal for fu­ture com­pli­ance,” said Carsten Stahn, in­ter­na­tional crim­i­nal law pro­fes­sor at Lei­den Uni­ver­sity. A de­ci­sion against South Africa “would send an im­por­tant mes­sage that states can­not ne­go­ti­ate (their) le­gal obli­ga­tions with the court,” he said.

Bit­ter dis­pute

De­spite two in­ter­na­tional ar­rest war­rants is­sued in 2009 and 2010, Bashir re­mains at large and in of­fice amid a rag­ing con­flict in the west­ern Su­danese re­gion of Dar­fur. The long-time ruler has de­nied the ICC’s charges, in­clud­ing three ac­cu­sa­tions of geno­cide as well as war crimes and crimes against hu­man­ity. The deadly con­flict erupted in 2003 when eth­nic mi­nor­ity groups took up arms against Bashir’s Arab-dom­i­nated gov­ern­ment, which launched a bru­tal counter-in­sur­gency.

The UN Se­cu­rity Coun­cil asked the ICC in 2005 to probe the crimes in Dar­fur, where at least 300,000 peo­ple have been killed and 2.5 mil­lion dis­placed, ac­cord­ing to UN fig­ures. Bashir con­tin­ues to travel and Khar­toum an­nounced Mon­day he will visit Moscow for the first time in Au­gust fol­low­ing an in­vi­ta­tion by Rus­sian Pres­i­dent Vladimir Putin. Rus­sia for­mally with­drew its sig­na­ture in Novem­ber from the ICC’s found­ing Rome Statute, a treaty Moscow has never rat­i­fied. Pre­to­ria and the ICC be­came em­broiled in a bit­ter tan­gle in 2015 when Bashir at­tended an African Union sum­mit in Jo­han­nes­burg.

De­spite the ar­rest war­rants, Bashir then flew home un­hin­dered. It re­mains un­clear whether he did so with the tacit ap­proval of South African Pres­i­dent Ja­cob Zuma’s gov­ern­ment. At a land­mark hear­ing in April, Pre­to­ria dis­puted ac­cu­sa­tions by the ICC’s pros­e­cu­tors that it had bro­ken its obli­ga­tions to the very same tri­bunal it helped found in 2002. An­gry pros­e­cu­tors stated Pre­to­ria “had the abil­ity to ar­rest and sur­ren­der Mr Al-Bashir and it chose not to do so.” Pre­to­ria’s lawyers ar­gued there “was no duty un­der in­ter­na­tional law on South Africa to ar­rest” Bashir, say­ing he en­joyed diplo­matic im­mu­nity.

‘Com­pli­cated mat­ter’

In­ter­na­tional law ex­perts agree the ICC’s judges are likely to find South Africa failed in its obli­ga­tions to ar­rest and sur­ren­der Bashir. But they added it was not a sim­ple mat­ter of rap­ping Pre­to­ria over the knuck­les. “The man­ner and tone in which the de­ci­sion is meted out will be of ut­most im­por­tance,” said in­ter­na­tional law ex­pert Mark Ker­sten of the Uni­ver­sity of Toronto. “It is pos­si­ble, and what many hope, is that the de­ci­sion will show some de­gree of un­der­stand­ing, and per­haps le­nience to­wards South Africa and sug­gest that the mat­ter con­tin­ues to be de­bated at the ap­peals level,” Ker­sten said. The ICC’s judges could also re­fer the case to the court’s Assem­bly of States Par­ties or the UN Se­cu­rity Coun­cil for fur­ther ac­tion. — AFP

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