South Africa in court over failure to arrest Sudan’s Bashir

President Jacob Zuma meeting in Khartoum with President Omar al-Bashir, January 31st, 2015. (Source: DoC, South Africa)

Judges at the International Criminal Court in The Hague heard arguments Friday on whether South Africa should be reported to the UN Security Council or the ICC’s governing body, the Assembly of State Parties, for failing to arrest Sudan’s President Omar al-Bashir during a visit to the country in 2015.

Two arrest warrants are outstanding for al-Bashir for crimes against humanity, war crimes and genocide. Judges have asked ICC member states to cooperate in arresting him.

South Africa is now in the hot seat because it is a member of the court and yet it failed to arrest Bashir during a two-day summit of the African Union in 2015 held in Johannesburg. During the summit Bashir hastily left the country from a military airport, after local courts and the ICC requested his arrest.

In court on Friday, lawyers for South Africa told the ICC judges that they believed South Africa was under no obligation to arrest Bashir during his visit even though he was wanted by the permanent war crimes court.

“There is no duty in international law, in general and in particular under the Rome Statue, on South Africa to arrest of a serving head of an non-state party, such as Mr. al-Bashir, argued South African legal representative Dire Tladi, also citing a South African law that grants sitting heads of state immunity from prosecution.

But prosecutors said judges should censure South Africa for its non-compliance with the arrest warrant. “The obligation to arrest and surrender a suspect wanted on ICC warrants is one of the highest obligations a state party has to the court,” said prosecutor Julian Nicholls.

“Without state parties fulfilling that obligation, it’s impossible for the court to exercise its most important functions and powers, its ability to put on trial those for whose warrants have been issued for the most serious crimes of concerns.”

A legal observer writing in South Africa’s Daily Maverick expects South Africa to lose the case. Kaajal Ramjathan-Keogh, Executive Director of the Southern Africa Litigation Centre, commented, “This was a difficult hearing for South Africa and despite the brave defence it put up, it is inevitable that the Court will arrive at a decision that despite their efforts to cooperate South Africa failed to comply with its international obligations to the ICC.”

ICC judges are expected to make a decision about South Africa and its alleged non-compliance within the next three months. For its part, Sudan does not recognize the jurisdiction of the ICC and denies the charges against Bashir. The ICC claims jurisdiction by virtue of a 2005 UN Security Council resolution referring the Darfur conflict to the Hague court.

Even if ICC judges rule that South Africa defied the arrest warrant, it is not clear what could be done at the UN Security Council, if anything, in relation to the case. However, such a ruling would be a blow to the embattled South African President Jacob Zuma, whose opponents are using the case as an example of the alleged lawlessness of his government. An opposition party in South Africa recently filed a case in Cape Town against cabinet ministers and security officials for their role in helping Bashir slip out of the country via a military airport, saying they violated the law in doing so.