Following the verdict of the International Criminal Court that on Thursday, 6 July, Pretoria had breached its obligations by not arresting Omar al-Bashir, prosecuted for genocide in Darfur, South Africa reacted. The Sudanese president was in Johannesburg at an African Union summit in June 2015. And although he was a signatory to the Rome Statute, South Africa had not arrested him. The Government indicated that it had taken note of the verdict. He has five days to appeal.
For South Africa, it’s a real hassle. The ICC ruled that Pretoria should have arrested the Sudanese leader when he was in his territory and could not invoke the immunity of a head of state.
There is no conflict or ambiguity, “said Justice Cuno Tarfusser. “South Africa was not entitled to rely on its own interpretation of Article 98 of the Rome Statute in order to unilaterally decide not to comply with the Court’s request and to arrest Omar al- Bashir. ” There will be no penalty for Pretoria. The Court did not refer the case to the UN Security Council. But the image of a South Africa, pioneer in the defense of human rights, is tarnished.
For the main opposition party, as for many human rights organizations, this verdict shows the current government’s disregard for the rule of law and justice.
Mixed responses from NGOs
So for Netsanet Belay, Africa director of Amnesty International, although South Africa will not be sanctioned, this verdict is important in several respects.
“This clarifies any ambiguity that may arise in the debate on immunity,” he said. This is not the first time that the Court has announced its verdict on the possible immunity of Omar al-Bashir. The Court heard a new set of arguments from a Member State, this time South Africa on why it considers that Omar al-Bashir enjoys immunity and can not, Stop. And once again, the Court reaffirmed that it has no immunity and that the Rome Statute is clear, South Africa should have stopped it. Secondly, this judgment also sends a strong message to other member countries such as Jordan, which continues to violate the Treaty of Rome by refusing to arrest Bashir. It is a reminder to these member states and the international community that atrocities can not be ignored and that impunity can not prevail. ”
Kaajal Ramjathan-Keogh, Executive Director of the Southern African Litigation Center (SALC), regrets the absence of a follow-up to the verdict.
“I think that the Court has taken into account the susceptibilities and debates in South Africa around a possible withdrawal from the Rome Statute, which would explain why its decision is rather nuanced,” he said. There is a lot of pressure within the ruling party for a withdrawal from the International Criminal Court, which would have very worrying consequences for South Africa as well as for neighboring countries. An overly negative decision, accompanied by a referral to the Security Council or the Assembly of Member States, may have prompted South Africa to accelerate its withdrawal from the ICC. If we look at what happened with the countries that have failed to fulfill their obligations and whose cases have been referred to, such as Kenya, Uganda, Malawi or Djibouti, In any case, there was no catching or pronouncement. ”
Written Fabrice Hakizimana.