At ICC, govt defends non-arrest
THE HAGUE: War crimes judges will tomorrow hear why South Africa failed to arrest Sudan’s President Omar al-Bashir during a 2015 visit, as they mull whether to report Pretoria to the United Nations for possible action.
South Africa’s lawyers will defend the decision not to detain Mr Bashir — wanted for genocide, war crimes and crimes against humanity — at a hearing scheduled to start at 7.30am (1.30pm Thai time) at the International Criminal Court.
At the heart of the matter is South Africa’s refusal to arrest
Mr Bashir when he attended an African Union summit in Johannesburg in mid-June 2015, insisting he had “head of state immunity” and allowing him instead to slip out of the country under shadowy circumstances.
Judges at the tribunal based in The Hague will decide after the day-long hearing whether the southern African state violated its obligations by not arresting Mr Bashir and handing him over.
Pretoria is a signatory to the Rome Statute which underpins the world’s only permanent war crimes court. In 2005, the UN Security Council asked the ICC to probe crimes in the western Sudan region of Darfur where, according to UN figures, some 330,000 people have been killed in a conflict between Khartoum and mostly black African insurgents.
The tribunal issued arrest warrants in 2009 and 2010 for Mr Bashir for alleged crimes related to the conflict. He has steadfastly denied the charges.
But in its submission to the court, South Africa argued that “the circumstances within which South Africa found itself and the applicable law were not as clear cut as the Chamber is inclined to believe”. It insists that even if Mr Bashir is wanted by the court it is “for the national authorities of the requested state to carry out the arrest — and it is this act of arrest in the domestic jurisdiction of that state that is prohibited by head of state immunity”.
The ICC’s prosecutors have hit back, pointing out that in the past South Africa told Mr Bashir he would be arrested if he set foot in the country. “South Africa remained under an obligation to immediately arrest ... Bashir if he entered South African territory,” ICC chief prosecutor Fatou Bensouda said in a document to the court. “Given the circumstances, it is appropriate for the Chamber to refer South Africa” to the UNSC for possible further action.
The ICC does not have a police force to arrest wanted suspects and is dependent on member states to carry out such tasks.
South Africa’s Supreme Court of Appeal has accused President Jacob Zuma’s government of “disgraceful conduct” over Mr Bashir’s visit and ruled the failure to arrest him was unlawful. Even though the UNSC has the power to impose sanctions, experts say an eventual referral will amount to little more than a slap on the wrist for South Africa. “It’s not the first time a state party country has failed to arrest Bashir and been reported,” said Goran Sluiter, an international law professor at the University of Amsterdam. “Unfortunately, I have to note that none of these countries ever felt any real repercussions.” Last year alone the ICC referred Chad, Djibouti and Uganda after they all hosted Mr Bashir and failed to arrest him.