SA was under a duty under the Rome Statute to arrest Sudanese President Omar al-Bashir when he was in the country in 2015 at the AU summit‚ the International Criminal Court (ICC) ruled yesterday. By not arresting him‚ it failed in its duty to comply with the court’s request for his surrender. This prevented the court from exercising its functions and powers‚ the ICC said in its finding, according to a BusinessLIVE report.

SA had argued for al-Bashir’s immunity under customary international law on account of his position as a sitting head of state‚ and the immunity agreement SA concluded with the African Union for the AU heads of state summit. The court said it did not agree with this submission.

It said Article 27.2 of the statute excluded the immunity for heads of state from arrest. SA‚ as a signatory of the Rome Statute and having enacted a local law adopting the statute‚ was bound to execute the warrant of arrest, the court found. The Southern Africa Litigation Centre (SALC) sought the execution of the ICC warrant. However, despite a court order instructing the state to ensure it prevented al-Bashir from leaving the country‚ the Sudanese President was allowed to leave.

Full BusinessLIVE report

ICC ruling

The ICC said it was not necessary to refer the matter to the Assembly of States Parties to the Rome Statute or the UN Security Council, notes a News24 report. ‘The chamber considers that the referral to the Assembly of State Parties or the Security Council of the UN ... is not warranted,’ Judge Cuno Jakob Tarfusser said while reading out his judgment. He said, the chamber considered that the manner in which SA approached its obligations to co-operate with the court is a significant determination of whether a referral to the Security Council was necessary. ‘SA presented extensive oral and written legal arguments on the matter and had indicated its intention to avail itself of the possible remedy of lodging of an appeal in the event that the chamber had found it had violated its obligation under the statute.’

He said the chamber considered that in the circumstances of the case, a referral of SA’s non-compliance to the Assembly of State Parties and or the Security Council would not be an effective way to obtain co-operation. ‘The chamber notes that SA’s domestic courts have found that the government ... acted in breach of its obligation under its domestic legal framework by not arresting Omar al-Bashir and surrendering him to the court.’ Importantly, said Tarfusser, the government had withdrawn from its previously lodged appeal against the the SCA ruling against it. ‘It therefore appears that the government ... has accepted its obligations to co-operate with the court under its domestic legal framework.’ He said if there was any doubt in this regard, it has now been established both domestically and internationally, that SA must arrest al-Bashir and surrender him to the court.

Full News24 report

Government will peruse the ruling and seek legal opinion on available options, the Department of International Relations said, notes a News24 report. ‘The government notes in particular that the ICC has decided not to refer the matter to the Assembly of State Parties and the United Nations Security Council,’ the department’s statement read. A report on the IoL site notes Amnesty International said the finding confirmed that the Sudanese President did not have immunity from arrest. ‘Today’s finding confirms what everyone, including South African authorities, knew all along. Al-Bashir does not have immunity from arrest and all states parties to the Rome Statute must arrest him the minute he steps onto their territory and hand him over to the ICC,’ said Netsanet Belay, Amnesty International's African director for research and advocacy. ‘It is shocking that other states parties such as Jordan are also failing in their obligations to arrest al-Bashir and this decision makes it clear that they do so in flagrant violation of international law.’

Full News24 report

Full report on the IoL site

SA had acted in the best interests of African states by not arresting al-Bashir, according to the chairperson of Parliament’s International Relations Committee. ‘President al-Bashir was in the country attending an AU summit of heads of state, and the principles of diplomatic immunity applied. The committee remains convinced that SA acted in the best interests of African states and her people by not arresting a sitting head of state,’ Siphosezwe Masango is quoted as saying in a report on The Citizen site. ‘Diplomatic immunity impresses upon nations respect and absolute freedom for heads of states when visiting countries on international missions. SA ought to have been treated like the UN where Presidents attend important meetings in the US and cannot be arrested while on those assignments.’ Masango supported government’s intention to withdraw from the ICC. ‘If this ruling is insistent that SA ought to have arrested the President of Sudan, then that is justification enough for the government to leave the ICC as a matter of urgency,’ he said.

Full report on The Citizen site

There could be implications for SA in the judgment, says Director for Applied Legal Studies and associate professor at the Law School at Wits University, Professor Bonita Meyersfeld. ‘According to the principle of state responsibility in international law, the finding by the ICC will trigger a range of possible consequences, including SA having to undertake not to repeat the harm,’ Meyersfeld is quoted as saying in a report in The Mercury.

‘It is a bold judgment and an important confirmation that sitting heads of state cannot escape international accountability for international crimes,’ she said.

Independent analyst Paul Graham said the judgment confirmed judgments in SA courts against the government on al-Bashir. ‘The present AU statutes do not allow heads of state immunity,’ he said. He said in a minority judgment, the judges found that SA was a signatory to a treaty on genocide, and this meant that it had a duty to arrest al-Bashir. The ruling would have ended any hope SA may have harboured over securing a permanent seat in the UN Security Council, according to public law professor Marinus Wiechers in a report in Die Burger. Although the matter was not referred to the council, Wiechers says the ruling ‘creates the impression that the government is not taking genocide and crimes against humanity seriously’.

Full report in The Mercury (subscription needed)

Full report in Die Burger (subscription needed)

There is some disappointment in the ICC’s finding in respect of the absence of a sufficiently harsh penalty against SA, notes Kaajal Ramjathan-Keogh, executive director, Southern Africa Litigation Centre (SALC), in a detailed background on the Daily Maverick site. Noting the SALC was admitted to make amicus curiae submissions before the chamber despite strong opposition by the government, she says the SALC submissions sought to demonstrate SA had clear domestic and international legal obligations to arrest and surrender al-Bashir to the ICC. ‘The facts show that SA flouted its obligations by actively facilitating President al-Bashir’s escape, or, at a minimum, by failing to comply with its duty to arrest and surrender him to the ICC,’ she says.

SALC backgrounder