As expected South Africa has denied it flouted international law by refusing in 2015 to arrest visiting Sudanese President Omar al-Bashir wanted by war crimes judges on charges of genocide in Darfur. At an unprecedented hearing at the International Criminal Court (ICC), Pretoria found itself fending off accusations that it had failed in its obligations to the very tribunal which it helped to found, notes a News24 report.

South Africa's legal adviser Dire Tladi argued there ‘was no duty under international law on SA to arrest the serving head of a non-state party such as Mr Omar al-Bashir.’ He argued: ‘The duty to arrest Mr Omar al-Bashir was not as clear as the office of the prosecutor would suggest.'

Presiding judge Cuno Tarfusser said the aim of the hearing was to decide ‘whether SA failed to comply with its obligations ... by not arresting and surrendering Omar al-Bashir ... while he was on SA territory.’ The report notes the judges may decide to report Pretoria to the UN Security Council for eventual sanctions. But Pretoria's lawyers argued such a move would be ‘unwarranted and unnecessary’ and the ‘only purpose’ of such a measure would be ‘to cast SA in bad light'. 

Tladi warned the case will ‘have profound and far-reaching legal consequences far beyond’ the al-Bashir case, saying it could call into question the very integrity of the ICC. Legal representatives for the victims, Wanda Akin and Raymond Brown, urged the court to send ‘an unmistakable message that open defiance of its writ will not be permitted'. Although this is the first public hearing of its type, last year the ICC referred Chad, Djibouti and Uganda to the UN for also failing to arrest al-Bashir. So far no action has been taken against them.

Full News24 report

SA legal advisers told the judges the ICC warrant did not outweigh the country's law that grants sitting heads of state immunity from prosecution. SA Chief state law adviser Sandea De Wet is quoted in an SABC News report as saying: ‘We are a sovereign state, and sovereign states, as you would know, are governed by rules and procedure, and that is what we were looking for; that was not available and it is still not available.’

Tladi added: ‘Every inter-governmental conference that is hosted by SA is done so on the basis of a host country agreement. Each and every one of these host country agreements, not some, not most, every one of them, contains immunity provisions. So it is not the truth to suggest that host country agreement was concluded solely for the protection of one person.’

However, ICC prosecutor Julian Nicholls accused SA of deliberately choosing not to arrest al-Bashir, notes a second SABC News report. Nicholls says the only reason he wasn't arrested was because Pretoria disagreed with a High Court ruling instructing the government to apprehend him.

Nicholls says that SA ‘had the ability to arrest and surrender him and it chose not to do so’, allowing al-Bashir and his delegation to fly home unimpeded from a military air base. In the end the only reason Pretoria did not arrest him was ‘that SA disagreed with the court's jurisprudence, the law as set out... so it did not comply'.

First SABC News report

Second SABC News report

See a Daily Maverick analysis of the hearing

SA ambassador Bruce Koloane said SA’s withdrawal from the court was on hold to focus on how the court could be strengthened. According to Rapport, Koloane, speaking on the sidelines of the hearing, said it was not clear whether the government would start a new process to approve the withdrawal following the High Court’s recent finding that the previous withdrawal process, which had bypassed Parliament, was flawed. ‘With everything going on at home and with all the pressure, I’m not sure whether (a new withdrawal process) is a priority.’