ICC judges reject South Africa’s argument against arresting
Sudanese president
June 13, 2015
(WASHINGTON/KHARTOUM) – The judges of the International Criminal Court (ICC)
issued an urgent decision on Saturday by which it asserted that South Africa is
under the obligation to arrest and surrender Sudanese president Omer Hassan
al-Bashir who has arrived on Saturday in Pretoria to attend the 25th ordinary
session of the African Union (AU).
Bashir was indicted by the
International Criminal Court (ICC) in 2009 over alleged war crimes and crimes
against humanity during the Darfur conflict. As a result his overseas travel
has been restricted to friendly nations ever since.
South Africa joined a list of
ICC members that have chosen to ignore the arrest warrant and receive the
Sudanese leader after days of intense speculation over his attendance.
A filing published on the ICC
website disclosed that a South African delegation met with officials from The
Hague court this week to excuse the nation from the obligation to apprehend
Bashir.
“On 12 June 2015, upon request
of the Republic of South Africa, the Presiding Judge, in the presence of
representatives of the Registrar and the Office of the Prosecutor, met with the
Ambassador of South Africa to the Netherlands and an accompanying legal
advisor, for consultations under article 97 of the Statute. The Ambassador of
South Africa to the Netherlands read out a note verbale making the argument
that there was lack of clarity in the law and that the Republic of South Africa
was subject to competing obligations”.
Article 97 of the Rome Statute
deals with situations where a state receives a request from the ICC and the
former initiates “consultation” with the court to explain why it cannot execute
it for reasons that include that the “request in its current form would require
the requested State to breach a pre-existing treaty obligation undertaken with
respect to another State”.
Some sources have said that
South Africa signed an agreement with AU bestowing immunity on Bashir from
arrest when he attends the summit. There was no independent confirmation.
The judge dismissed South
Africa’s legal challenge and said that its representatives “were explained that
there is no ambiguity in the law and that the Republic of South Africa is under
the obligation to arrest and surrender to the Court Omar Al Bashir”.
The chamber recalled a similar
excuse made by the Democratic Republic of the Congo (DRC) for receiving Bashir
in which it affirmed that the United Nations Security Council (UNSC) “under
Chapter VII of the UN Charter, had lifted the immunities of Omar Al Bashir by virtue
of Resolution 1593(2005), the Republic of the Democratic Republic of Congo
could not invoke any other decision, including that of the African Union,
providing for any obligation to the contrary”.
“The delegation from the
Republic of South Africa was reminded of this during the meeting of 12 June
2015. In particular, the Presiding Judge repeatedly made clear, in unequivocal
terms, that the Republic of South Africa is under the obligation to immediately
arrest and surrender Omar Al Bashir as soon as on its territory and that the
consultation between the Court and the Republic of South Africa under article
97 (or any other further discussion on the point at any later stage) do not
trigger any suspension or stay of this standing obligation. As there exists no
issue which remains unclear or has not already been explicitly discussed and
settled by the Court, the consultations under article 97 of the Statute between
the Court and the Republic of South Africa have therefore ended”.
South Africa’s move to receive
Bashir contrasted sharply with its public position in the past that it will
arrest Bashir should he visit in compliance with the ICC arrest warrant. This
was despite AU resolutions instructing its members not to cooperate with the
ICC in apprehending Bashir.
In August 2009 the South
African Department of Foreign Affairs issued a detailed statement outlining its
position on the AU resolution regarding Bashir from a legal and political
perspective.
“An international arrest
warrant for President El Bashir has been received and endorsed by a magistrate.
This means that if President El Bashir arrives on South African territory, he
will be liable for arrest” the statement said.
Bashir has not visited South
Africa since the issuance of the arrest warrant but in May 2009 he asserted in
an interview with the BBC ‘Hardtalk’ program that he could visit if he wanted
to.
His plane, in an open challenge
to the ICC, landed in Johannesburg at 6:30 pm (Sudan’s local time).
According to Sudan’s official
news agency SUNA, Bashir’s accompanying delegation included the foreign
minister, Ibrahim Ghandour, presidential minister, Salah Wanasi, minister of
welfare and social security, Mashai’r al-Dawalab and the president’s office
director, Taha Osman al-Hussein.
The Sudanese leader has managed
to travel to several African ICC members since 2009 but in some of these
instances this seem to have backfired.
A trip by Bashir in 2011 to
Kenya, another ICC member, without being arrested prompted a civil society
group to file a case in court which ended up with the issuance of a provisional
arrest warrant for him by a Kenyan judge.
Malawi, which received Bashir
once, chose not to host an AU summit afterwards because it could not guarantee
Bashir’s risk-free attendance after US pressure.
In 2013, Bashir, traveled to
Nigeria for a conference but left abruptly after less than 24 hours without
addressing the main event on behalf of Sudan or attending a formal dinner or
taking part in the group photo.
In Johannesburg, Caroline James
from the Southern Africa Litigation Centre (SALC) told Sudan Tribune earlier today that they were waiting
to confirm the arrival of Bashir before submitting an urgent request with a
High Court judge to issue a local arrest warrant for Bashir.
Asked whether she believed that
she believed that South Africa has the political will to arrest Bashir, she
noted the country’s position in the past on the issue and the fact that the
Rome Statute is incorporated in the country’s constitution.
James said that the judge has
been notified about the impending filing but it is not clear how quick he would
decide on SALC request.
The ICC prosecutor Fatou
Bensouda was quoted by Associated Press as saying that "We’ve been in
contact and we are basically reminding them of their obligation under the Rome
Statute to have him arrested if he gets to South Africa”.
If al-Bashir is not arrested,
the matter will be reported to the court’s assembly of states and the United
Nations Security Council, which first referred the case of Sudan’s Darfur region
to the International Criminal Court in 2005, the Gambian-born prosecutor said.
Rights groups echoed the
prosecutors call for al-Bashir’s arrest.
"Allowing President
al-Bashir into South Africa without arresting him would be a major stain on
South Africa’s reputation on promoting justice for grave crimes," said
Elise Keppler, acting international justice director at Human Rights Watch
(HRW), in a statement.
South African officials have
remained mute on the issue but the AU Commission spokesman Jacob Enoh-Eben
noted that the AU has asked the ICC to stop proceedings against sitting
presidents.
"It’s like arresting
yourself," said Enoh-Eben.
The African Union will not
compel any member states to arrest a leader on behalf of the court, he added.
The UNSC has refused to suspend
proceedings against Bashir per Article 16 of the Rome Statute despite repeated
requests by the AU.
http://www.sudantribune.com/spip.php?article55331
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