Delay in response to ICC is a thinly veiled attempt to allow Al-Bashir back

The Government’s failure to meet the deadline to submit an explanation to the International Criminal Court (ICC) on why they allowed the President of Sudan, Omar Al-Bashir, to leave South Africa is a thinly veiled attempt to allow Al-Bashir back into South Africa in December to attend the Forum on China-Africa Cooperation Summit (FOCAC).

The Department of International Relations and Cooperation (DIRCO) stated that “South Africa has now approached the Court for more time to respond to this request. This was done in view of the complex and conflicting legal principles involved, both in international and in South African domestic law, and the fact that the South African domestic courts are still seized -with the matter.”

South Africa will now have to approach the Secretariat of the Assembly of States Parties (ASP) to the Rome Statute, the political body of the ICC, when it meets in November to discuss “immunities of serving Heads of State and Government of States which are not parties to the Rome Statute, like Sudan.”

The South African Government also tweeted yesterday that “AU invited Heads of State & Government of all AU Member States, including President Omar Al-Bashir of Sudan, to attend the Summit”, signalling clearly that they fully intend to yet again break the law and host Al-Bashir for the FOCAC summit.

This statement signals two further issues. First, the Government will be applying to the Supreme Court of Appeal to overturn the High Court judgement that the failure to detain Al-Bashir was inconsistent with the Constitution. Second, it is highly likely that when they discuss the matter with the ASP in November, they will use the now infamous sub judice rule to yet again postpone submitting reasons for letting Al-Bashir leave South Africa without being arrested, and therefore allow Al-Bashir to attend the FOCAC summit in South Africa in December.

There should be no confusion as to South Africa’s obligation to arrest Al-Bashir in terms of the Rome Statute. Only last year a very similar case in the Democratic Republic of Congo was ruled on by the Pre-Trial Chamber of ICC and it was made abundantly clear that there was an obligation to arrest Al-Bashir.

The Pre-Trial Chamber of the ICC has no obligation to hear the Government’s side of the story as their opinion on South Africa’s obligation to arrest Al-Bashir is clear in the judgement handed down in the DRC case.

Furthermore, the claim that the process was of a diplomatic and political nature is not correct. This process is a legal one, as the Pre-Trial Chamber always ensures that the State Parties are reminded of their obligation to arrest persons for whom warrants of arrest have been issued. This is simply their process. 

The ICC in 2009 and 2010 issued cooperation requests to all State Parties, and so South Africa would have been fully aware, for several years, of its obligation to arrest Al-Bashir. If they felt they had a difficulty in doing so they should have approached the ICC then.

This flagrant abuse of and disregard for international and domestic law cannot be allowed to stand. 

Stevens Mokgalapa, DA Shadow Minister of International Relations and Cooperation, 6 October 2015