ICC not hard enough on SA over Bashir
a threat to international peace and security” and in March 2005 resolved to refer the Darfur issue to the ICC prosecutor.
In March 2009 and again in July 2010, the ICC issued two warrants of arrest against Bashir for war crimes, crimes against humanity and genocide committed in Darfur.
Bashir is the first sitting president to be indicted by the ICC and the first person to be charged by the ICC for the crime of genocide. Neither warrant has been enforced.
The Southern Africa Litigation Centre (SALC) was admitted to make amicus curiae submissions before the chamber despite strong opposition from the government.
The SALC submissions sought to demonstrate the country had clear domestic and international legal obligations to arrest and surrender Bashir to the ICC.
The ministers responsible for the Department of International Relations and Co-operation, Home Affairs and SAPS were parties to high court proceedings.
Had these ministers wanted to ensure compliance with the interim court order, which sought to prevent Bashir’s departure while the matter was being heard, they could have taken steps to inform their officials, in whose care the Sudanese delegation was entrusted.
South Africa astoundingly argued that the domestic legal proceedings had no bearing or relevance on the issue of co-operation before the ICC.
In 2009, the then International Relations director-general confirmed South Africa was obliged to arrest Bashir.
The 2015 lapse in judgment on its international obligations is unfortunate. In the April co-operation hearing, South Africa submitted that a referral would be unwarranted “as its only purpose would be to cast South Africa in a bad light and would not provide an incentive for co-operation”.
Many other countries have been in this position. In the case of Uganda’s non-compliance from May 2016, when Bashir travelled to attend the inauguration ceremony of President Yoweri Museveni, the ICC sought Uganda’s co-operation and failed to receive it.
The ICC found that Uganda failed to comply with the request from the ICC and referred Uganda to the Assembly of State Parties to the Rome Statute and UN Security Council.
Article 48 of the UN Charter empowers the UN Security Council to take action required to carry out its decisions to maintain international peace and security.
It is frustrating that no penalty or sanction has resulted from these referrals.
There is disappointment at the ICC finding on South Africa. But the ICC is not in a position to impose penalties on member states and neither the Assembly of State Parties nor the UN Security Council has imposed any penalties on countries that failed to co-operate. So a referral is likely to have no practical effect.
In addition, previous state party referrals have yielded no penalties and have not encouraged states to co-operate. This points to a failing by the UN Security Council.
The ICC found the government had accepted its obligation to co-operate with the ICC under its domestic legal framework. Whether this is true is unclear.
In respect of the AU decision directing its members not to co-operate with the ICC, the ICC noted this was based on the purported immunity of Bashir as a serving head of state.
Since the UN Security Council had already lifted his immunity, a state party to the Rome Statute could not decide to provide for any obligation to the contrary.
In the Uganda decision, the ICC stated that while it was sensitive to the regional political considerations, it was not in the nature of legal obligations that they could be put aside or qualified for political expediency.
This holds true for South Africa as well.
South Africa attempted to withdraw from the ICC last year and was prevented from doing so by litigation challenging the procedural nature of that withdrawal. South Africa was reluctantly forced to revoke its notice of withdrawal by the courts.
This does not mean that it is prevented from lodging a fresh notice.
The AU Summit in January adopted by consensus a strategy for mass withdrawal from the ICC. This is yet to be effected, with only Zambia taking steps in this regard.
More than 90% of Zambians polled wanted to remain ICC members. The recent ANC policy conference confirmed it would continue to pursue withdrawal from the ICC, but we may not see any steps to withdraw for now.
The Pretoria High Court asked the National Prosecuting Authority to investigate the state’s failure to arrest Bashir. It also recommended the NPA consider contempt of court proceedings for officials responsible for facilitating his departure.
Despite the SALC’S repeated requests that the NPA start proceedings, it has taken no steps to investigate.
Unless South Africa makes an unfortunate decision to appeal, this ruling closes the door on the Bashir saga for South Africa.
Kaajal Ramjathan-keogh is executive director of the Southern Africa Litigation Centre.