The International Criminal Court (ICC) based in The Hague yesterday found in a pre-trial hearing South Africa failed to comply with its obligations under the Rome Statute by not executing the court’s request for the arrest of Omar al-Bashir while in South Africa between June 13 and 15, 2015.
The ICC also found a referral to the Assembly of States Parties (ASP) or the United Nations’ Security Council on South Africa’s non-compliance was “not appropriate”.
Kaajal Ramjathan-Keogh of the South African Litigation Centre – which brought the original action to force the government to arrest Al-Bashir when he arrived for an African Union summit – said she believed the ICC was aware of the sensitivities around SA’s continued participation in the ICC.
“It has taken quite a delicate position in deciding not to make the referral,” Ramjathan-Keogh said.
“I don’t think it is a surprising position. In any case, if South Africa was referred and if we look at the situation of similar countries who failed to arrest Al-Bashir and who were referred such as Kenya, Uganda, Malawi, Djibouti, all received Al-Bashir and failed to arrest him.
“They were all referred to either the ASP or the United Nations Security Council or both and have not had any penalties imposed on them.”
The DA’s James Selfe said the ruling upheld those of SA’s courts and was welcomed.
“It is, however, of grave concern that the ANC remains committed to the stance of withdrawing from the ICC, having reiterated this sentiment at its policy conference,” said Selfe.
“The ANC seems intent on relegating South Africa to the status of a scumbag nation, which protects the law-breakers and corruptors of this world.”
The ANC head of its international relations committee, Edna Molewa, said the ICC ruling, although disappointing, was expected.
“This will not necessarily change our stance on moving out of the ICC,”
Molewa told Power 98.7FM and said the organisation was committed to peace building, which would not have happened if Al-Bashir was arrested.
Amnesty International’s Africa director for research and advocacy, Netsanet Belay, said the finding confirmed Al-Bashir did not have immunity from arrest.
“By failing to execute the ICC’s warrant against Al-Bashir, South African authorities took away a major opportunity from victims to achieve justice,” Belay said.
“What’s most important now is such shameful failure is never repeated.”