South Africa on Friday denied it had 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, Pretoria found itself fending off accusations that it had failed in its obligations to the very tribunal which it helped to found.
South African legal advisor Dire Tladi argued there “was no duty under international law on South Africa to arrest the serving head of a non-state party such as Mr Omar al-Bashir.”
Despite two international arrest warrants issued in 2009 and 2010, Bashir remains at large and in office amid the raging conflict in the western Sudanese region of Darfur.
He faces 10 charges, including three of genocide as well as war crimes and crimes against humanity in the western Darfur region.
The deadly conflict broke out in 2003 when ethnic minority groups took up arms against Bashir’s Arab-dominated government, which launched a brutal counter-insurgency.
The UN Security Council asked the ICC in 2005 to probe the crimes in Darfur, where at least 300,000 people have been killed and 2.5 million displaced, according to UN figures.
Pretoria, which had sought clarification from ICC judges about the case before Bashir’s 2015 visit, argues the Sudanese leader has immunity as a head of state.
There was “nothing at all” in the UN resolution which waived Bashir’s immunity, said Tladi.
Therefore Pretoria could not arrest him during his brief visit to South Africa in June 2015 for an African Union summit, despite its obligation to cooperate with the ICC.
“The duty to arrest Mr Omar al-Bashir was not as clear as the office of the prosecutor would suggest,” added Tladi.
Several victims of the conflict, who now live in The Netherlands, were attending Friday’s hearing in the tribunal in The Hague.
Conditions in Darfur remain “dire,” said Monica Feltz, executive director of the rights group, International Justice Project.
The 10 Darfurians who will watch the hearing are “hoping to see that their story is told, and that their voices are heard, and that the international community still cares,” she told AFP.
Presiding judge Cuno Tarfusser said the aim of the hearing was to decide “whether South Africa failed to comply with its obligations … by not arresting and surrendering Omar al-Bashir … while he was on South African territory.”
The judges will return their decision at a later date, and 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 South Africa in bad light.”
Tladi warned the case will “have profound and far-reaching legal consequences far beyond” the Bashir case, saying it could call into question the very integrity of the ICC.
The ICC’s prosecutors have hit back, pointing out that in the past South Africa told Bashir he would be arrested if he set foot in the country.
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 Bashir. So far no action has been taken against them.
The Sudanese leader was also a guest last month at an Arab League summit hosted by Jordan — also a signatory to the Rome Statute.
South Africa moved this year to withdraw from the court, angered by the case against it.
But it formally revoked its decision last month after its own High Court ruled in February that it would be unconstitutional.
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