SA to study al-Bashir ruling

President Jacob Zuma and Sudanese President Omar al-Bashir File photo: Jacoline Prinsloo

President Jacob Zuma and Sudanese President Omar al-Bashir File photo: Jacoline Prinsloo

Published Jul 7, 2017

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The Hague - The International Criminal

Court on Thursday rebuked South Africa for not arresting Sudan's

president on a genocide warrant when he visited Johannesburg in

2015, but declined to refer Pretoria to the United Nations for

possible censure over the lapse.

The ICC indicted Sudanese President Omar Hassan al-Bashir in

2008 over the deaths and persecution of ethnic groups in Sudan's

Darfur province between 2003 and 2008. But he has continued to

travel internationally, visiting Jordan as recently as March.

The first part of Thursday's ICC ruling was expected as the

war crimes court has consistently rejected arguments put forward

by the South African government, namely that it could not arrest

Bashir because visiting heads of state at the African Union

Summit held in the country enjoyed diplomatic immunity.

ICC judges said that heads of state or government clearly

fall under the court's jurisdiction and cannot be exempted at

home or abroad, echoing the conclusion of a South African

domestic court.

The second stage of the ruling was surprising as it was the

first time the ICC found one of its members had defied its

rules, yet took no action by reporting South Africa to the U.N.

Security Council or ICC member states for possible censure.

"The decision is something of an indictment of the U.N.

Security Council and the (ICC's) Assembly of State Parties,” ICC

expert and legal scholar Mark Kersten told Reuters.

Presiding Judge Cuno Tarfusser, reading a summary of the

ruling, noted that past referrals of countries to the Security

Council for noncompliance were "futile" in terms of leading to

further action and also "not an effective way to obtain

cooperation" with the ICC.

BASHIR DENIES WRONGDOING

Bashir denies wrongdoing and has rejected ICC jurisdiction.

It was the Security Council itself that referred Sudan's case to

the ICC in 2005.

"It is shocking that other (ICC member states) such as

Jordan are also failing in their obligations to arrest Bashir,

and this decision makes it clear they do so in flagrant

violation of international law," Amnesty International said in a

statement.

The ICC's decision not to refer South Africa might also be

intended in part to dissuade it from pulling out of the court.

In February, the African Union called for member states to

leave the ICC over a perceived bias by prosecutors in focusing

on African conflicts.

Kenya, Namibia, Burundi and South Africa have threatened to

ditch the ICC and Pretoria began the formal withdrawal process

last year before being blocked by a domestic court for not

getting parliament's approval first before pulling out.

"I believe (Thursday's) ruling will raise the costs of

withdrawal for South African President Jacob Zuma," Kersten

said.

In The Hague, South African Ambassador Bruce Koloane said

that for the time being "(we are) still a member effectively of

the ICC, we still have to honour all our obligations”.

In South Africa, opinions on what to do next were divided.

Pretoria's foreign affairs department said the government

would study the ruling "and its implications and seek legal

opinion on available options".

Siphosezwe Masango, who chairs parliament's international

relations committee, said he remained convinced South Africa was

right not to arrest Bashir, "a sitting head of state".

Pretoria's main opposition party, the Democratic Alliance,

said the ICC ruling was an indictment of Zuma's ANC government,

noting it had upheld the domestic court's position.

"The ANC seems intent on relegating South Africa to the

status of a scumbag nation which protects the law-breakers and

corrupter of this world," DA Federal Executive Chairperson James

Selfe said. 

Reuters

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