The International Criminal Court (ICC) has given South Africa until October 5 to explain why it did not arrest Sudanese president Omar al-Bashir.
The ICC had warned South Africa of the repercussions of allowing al-Bashir into the country way before he controversially landed in South Africa in June this year.
In an order made by the court last Friday, it emerged that the registrar of the ICC met with the South African embassy and reminded it of the country’s obligation to the Rome Statute.
The order was posted on the ICC website. The full post can be read here.
On May 28 this year, in a note verbale to the South African embassy, the court reminded South Africa of its obligation to consult with it if it foresaw any difficulties in arresting al-Bashir.
Lack of clarity
On Friday June 12, the day al-Bashir landed in Johannesburg, the South African representative to the court told the court that there was lack of clarity in the law and that South Africa was “subject to competing obligations”.
On the following Saturday, even before a South African court ruled that al-Bashir be arrested, an ICC judge, Cuno Tarfusser, issued a decision noting that South Africa has to immediately arrest and surrender al-Bashir.
Despite this, al-Bashir attended the AU Summit in Sandton, Johannesburg.
On Monday, June 15, the North Gauteng High Court ruled that al-Bashir be arrested and handed over to the ICC. But by that time al-Bashir had already left Waterkloof Military Base in open defiance of the order.
Last month, a full bench of the North Gauteng High Court reserved judgment on the government’s application for leave to appeal against a June 15 order that al-Bashir be arrested.
No legal duty
The government’s lawyer in the appeal against the order, Jeremy Gauntlett, argued that there was no legal duty for the government to arrest a “serving head of state under the South African law”.
He said the order to arrest al-Bashir was contrary to the government’s statutory duties, not consistent with the Constitution and inconsistent with Constitutional Court authority.
Al-Bashir has been wanted since 2009 on charges of crimes against humanity.
The department of international relations would not comment on the order from the ICC saying the matter was sub judice. The controversial exit of al-Bashir from South Africa has become a sticky political matter.
Could SA leave Rome Statute?
Over the weekend, the ANC Youth League called once again for South Africa to relinquish its commitment to the Rome Statute.
The ANC has also instructed the department of international relations to review South Africa’s membership of the court.
Last week the Democratic Alliance failed in its bid to have President Jacob Zuma impeached on the basis that he did not uphold the rule of law by not arresting al-Bashir.
Speculation is rife that the Sudanese president may return to the country in December. This may be seen as an open defiance of the ICC by South Africa and will likely strengthen rumours that Pretoria will soon pull out of the Rome Statute.
The Sudanese leader may well be invited to The Forum on China/Africa Co-operation, scheduled to take place in December.
Zuma met with al-Bashir in China last Thursday where the pair committed to strengthening bilateral relations.