FILE - In this June 14, 2015 file photo, Sudanese President Omar al-Bashir smiles during a visit to Johannesburg, South Africa. In the Hague, Netherlands, Thursday, July 6, 2017 the International Criminal Court has ruled that South Africa should have arrested al-Bashir, who is wanted in connection with war crimes, when he entered the country. (AP Photo/Shiraaz Mohamed, File)

Cape Town - The chairperson 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 in its legal duty to comply with a request by the International Criminal Court (ICC), contrary to the provisions of the Rome Statute, it was ruled on Thursday.

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 membership 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”.