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.