SA erred in not arresting al-Bashir – ICC

July 7  2017 – SA ‘s failure 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 (today) 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. 

The court rejected SA’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.

Al-Bashir was in SA to attend an AU 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 SA 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”. 

SA 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 SA from the Rome Statute of the ICC without prior parliamentary approval is unconstitutional and invalid”. – ANA