South Africa says it was not obliged to arrest al-Bashir


South Africa insisted to International Criminal Court judges Friday that it did not have to arrest Sudanese President Omar al-Bashir when he visited Johannesburg in 2015 for an African Union summit.

President Jacob Zuma and the man wanted by the ICC Sudanese President Omar Al-Bashir
President Jacob Zuma and the man wanted by the ICC Sudanese President Omar Al-Bashir

But prosecution lawyers disagreed, saying that without countries’ cooperation the world’s first permanent international court will not be able to fulfill its mandate of bringing to justice leaders responsible for crimes that shock humanity.

The prosecution lawyers asked judges to refer South Africa’s non-compliance to the United Nations Security Council and the court’s governing body, the Assembly of States Parties.

The hearing and the judges’ decision could help clarify the legal obligations of states to arrest suspects charged by the ICC. “This case will have a profound and far-reaching legal consequence far beyond Mr. al-Bashir,” South African lawyer Dire Tladi told the judges.

Lawyers for South Africa said the court’s founding treaty, the Rome Statute, does not oblige authorities to arrest heads of state of countries that are not members of the court, such as Sudan.

“There is no duty under international law in general, and in particular under the Rome Statute, on South Africa to arrest a serving head of a non-state party,” Tladi said.

The dispute over South Africa’s refusal to arrest al-Bashir prompted the country to move to withdraw from the ICC, but it revoked the decision earlier this year after a domestic court ruled that leaving the ICC without parliamentary approval was unconstitutional.

The Security Council asked the ICC in 2005 to investigate atrocities in Darfur. ICC prosecutors charged al-Bashir in 2009 and 2010 with genocide, crimes against humanity and war crimes in Sudan’s Darfur region, but the ICC has no police force of its own to arrest him and has to rely on the cooperation of member states to arrest suspects like al-Bashir.

“Without states parties fulfilling that obligation it is impossible for the court to exercise its most important functions and powers: its ability to put on trial those for whom warrants have been issued for the most serious crimes,” prosecution lawyer Julian Nicholls said.

Tladi pointed out that South Africa is far from alone in not arresting the Sudanese leader. Just last month he was welcomed to Jordan by King Abdullah II for a summit of Arab leaders, and al-Bashir has visited several other African states.

Tladi also said that arresting al-Bashir at an African Union summit could have damaged his country’s role in settling regional disputes.

“As a leading player in peace efforts, we cannot disengage from the African Union,” he told the three-judge panel.


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