SA was ‘bound’ to arrest Al Bashir
SOUTH Africa had a duty under the Rome Statute to arrest Sudanese President Omar al Bashir when he was in the country in 2015‚ the International Criminal Court (ICC) said yesterday.
By not arresting him‚ South Africa failed in its duty to comply with the court’s request for his surrender‚ the ICC found.
The court made the finding yesterday in respect to South Africa’s failure to arrest Al Bashir when he attended an African Union (AU) summit in South Africa in June 2015.
SA had argued for Al Bashir’s immunity under customary international law on account of his position as a sitting head of state‚ and on grounds of an immunity agreement South Africa had with the AU for its members’ heads at the state summit.
The court disagreed with this submission. It said Article 27.2 of the statute excluded immunity for heads of state from arrest.
The court said its jurisdiction to act was triggered by a United Nations Security Council (UNSC) resolution that referred the prosecution in Darfur to the prosecutor in the ICC. The ICC had issued a warrant for his arrest in 2009 and another in 2010 on charges of committing war crimes in his country between 2003 and 2008.
Al Bashir arrived in South Africa to attend the AU Summit‚ despite the ICC’s warrants.
South Africa‚ as a signatory of the Rome Statute and having enacted a local law adopting the statute‚ was legally bound to execute the warrants of arrest.
The Southern Africa Litigation Centre sought the execution of the ICC warrant.
Despite a court order instructing the state to ensure it prevented Al-Bashir from leaving the country‚ the Sudanese president left South Africa after the summit.
However, the war crimes court judges declined to refer South Africa to the UNSC over the matter.
They noted that South African courts had already censured the government for its failure in Bashir’s case and said referring it to the UN would likely have little effect. — TMG-Reuters