The chairman of Parliament’s international relations portfolio committee on Thursday maintained South Africa acted in the best interests of African states by not arresting Sudanese president Omar al-Bashir, despite the International Criminal Court (ICC) ruling the SA government had failed in its duty to uphold the Rome Statute.
“President Al-Bashir was in the country attending an African Union summit of heads of state, and the principles of diplomatic immunity applied. The Committee remains convinced that South Africa acted in the best interests of African states and her people by not arresting a sitting head of state,” said Siphosezwe Masango.
“Diplomatic immunity impresses upon nations respect and absolute freedom for heads of states when visiting countries on international missions. South Africa ought to have been treated like the United Nations where presidents attend important meetings in the United States and cannot be arrested while on those assignments.”
Masango again supported government’s intention to withdraw from the ICC.
“If this ruling is insistent that South Africa ought to have arrested the president of Sudan, then that is justification enough for the South African government to leave the ICC as a matter of urgency.”
In a unanimous ruling on Thursday afternoon, the ICC judges ruled: “The chamber concludes by not arresting Omar al-Bashir between 13 and 15 June 2015, South Africa failed to comply with the court’s request for the arrest and surrender of Omar al-Bashir, contrary to the provisions of the [Rome] Statue, thereby preventing the court from exercising its duties and functions…”
The court rejected South Africa’s arguments that according to international customary law regarding diplomatic immunities, it could not arrest a sitting president who was in South Africa on an invitation from the African Union, saying SA had no right to make a unilateral decision not to arrest the Sudanese president.
By failing to arrest and surrender Sudanese President Omar al Bashir in 2015, South Africa failed to comply with a request by the International Criminal Court (ICC), contrary to the provisions of the Rome Statute, it was ruled on Thursday.
“The chamber concludes by not arresting Omar al-Bashir between 13 and 15 June 2015, South Africa failed to comply with the court’s request for the arrest and surrender of Omar al-Bashir, contrary to the provisions of the [Rome]Statue, thereby preventing the court from exercising its duties and functions….,” a unanimous ruling by the ICC in the Hague, Netherlands, said.
Al-Bashir was in South Africa to attend an African Union summit in Pretoria in 2015. While he was here, the South African Litigation Centre obtained a court order compelling government to arrest him. However, Bashir later left the country without South African having arrested him in compliance with the request from the ICC.
Dunstan Mlambo, judge president of the high court in Pretoria later found that “the departure of president Bashir from this country before the finalisation of this application and in the full awareness of the explicit order of Sunday 14 June 2015, objectively viewed, demonstrates non-compliance with that order”.
South Africa later voiced its intention to withdraw members from the ICC.
In February, the High Court in Pretoria ruled that “the decision by the national executive to deliver the notice of withdrawal of South Africa from the Rome Statute of the ICC without prior parliamentary approval is unconstitutional and invalid”.
Amnesty International reacts:
Amnesty International said on Thursday a ruling by the International Criminal Court (ICC) Pre-Trial Chamber that South Africa failed in its duty to the ICC to arrest Omar al-Bashir confirmed that the Sudanese president did not have immunity from arrest.
“Today’s finding confirms what everyone, including South African authorities, knew all along. Al-Bashir does not have immunity from arrest and all states parties to the Rome Statute must arrest him the minute he steps onto their territory and hand him over to the ICC,” said Netsanet Belay, Amnesty International’s African director for research and advocacy.
“It is shocking that other states parties such as Jordan are also failing in their obligations to arrest Al-Bashir and this decision makes it clear that they do so in flagrant violation of international law.”
Bashir travelled to South Africa to attend an African Union Summit in 2015, and despite a high court ruling compelling the South African government to arrest him and surrender him to the ICC under its obligation as a signatory to the Rome Statute, he was allowed to leave the country without arrest.
South Africa has argued that it had an obligation under international customary law regarding diplomatic immunites not to arrest a sitting head of state. The ICC rejected this argument.
Bashir most recently travelled to Jordan, with that country also refusing to arrest him.
Belay said Thursday’s ICC ruling set an important precedent.
“South Africa breached its international and domestic legal obligations when it failed to arrest Al-Bashir. No state should follow this example. There must be no impunity for crimes under international law,” he said.
“By failing to execute the ICC’s warrant against Al-Bashir, South African authorities took away a major opportunity from victims to achieve justice. What’s most important now is such shameful failure is never repeated. South Africa must now put its weight behind international justice which faces increasing global challenges.”
– African News Agency (ANA)