SA broke rules over al-Bashir, says court

The International Criminal Court has found that SA failed to comply with its request to arrest and surrender Sudanese President Omar al-Bashir when he visited the country in June 2015, but has decided not to refer this noncompliance to the Assembly of States Parties or the UN Security Council.

The Hague-based court did not believe a referral was warranted and “would not be an effective way to obtain the cooperation” of SA, judge Cuno Tarfusser said in reading out his judgment on Thursday.

Another reason for the non-referral was that South African courts had already strongly censured the government for its unlawful and unconstitutional decision not to arrest Bashir when he visited the country to attend an AU summit.

The government is not appealing against the South African court judgments.

SA has five days to file an appeal against the International Criminal Court judgment. Judge Tarfusser stressed, however, that if an appeal was lodged, it would have to be against the judgment in its entirety.

A government statement on Thursday night said it had noted the judgment and was still studying it.

“The government notes in particular that the [International Criminal Court] has decided not to refer the matter to the Assembly of States Parties and the United Nations Security Council,” the statement said.

“The government will study the ruling and its implications and seek legal opinion on available options. In the meantime, SA reiterates its total commit---

ment to the principles of international justice,” it said.

In his judgment, Judge Tarfusser said the Hague court’s decision “conclusively and comprehensively disposes of the matter of SA’s obligations under the [Rome] statute”.

“It has now been unequivocally established both domestically and by this court that SA must arrest Omar al-Bashir and surrender him to this court,” the judge said.

“Any possible ambiguity as to the law concerning SA’s obligations has been removed.”

In its unanimous judgment, the Hague court rejected SA’s argument that as a sitting head of state, Bashir had immunity from arrest under the Rome Statute, which governs the operations of the court.

It also rejected SA’s argument that this immunity was based on its host agreement with the AU for the summit.

Director of the Southern African Litigation Centre Kaajal Ramjathan-Keogh said she was not surprised by the judgment, which confirmed the findings of South African courts. But she was surprised about the nonreferral, even though this would not have had consequences.

Uganda, the Democratic Republic of Congo, Kenya and Djibouti had all been referred by the court for not arresting Bashir but there had been no follow-up, she said.

Ramjathan-Keogh believed the court was sensitive about SA’s plan to withdraw from the Rome Statute and had also sought to complement the actions of the local judiciary. “SA has managed to save its face internationally because of the nonreferral,” she said.

However, the chairman of Parliament’s international relations committee, Siphosezwe Masango, continued to maintain that Bashir had diplomatic immunity and that SA “acted in the best interests of African states and her people by not arresting a sitting head of state”.

“If this ruling is insistent that SA ought to have arrested the president of Sudan, then that is justification enough for the South African government to leave the International Criminal Court as a matter of urgency.”

DA federal executive chairman James Selfe said the judgment was an indictment of the ANC government.

The Hague court issued warrants for Bashir’s arrest in 2009 and 2010 on charges of war crimes allegedly committed in Darfur in 2003. SA is a signatory of the Rome Statute and enacted a domestic law to adopt it. It has since indicated its plan to withdraw from the court.

A few weeks before Bashir’s entry into SA, the Hague court asked the government to hand him over to the court should he enter the country.

However, instead of arresting Bashir, the government helped him to escape in defiance of an order of the High Court in Pretoria that he be prevented from leaving SA.

The Southern African Litigation Centre had brought the arrest application.