War crimes judges ruled Thursday that South Africa flouted its duties to the International Criminal Court in 2015 by failing to arrest visiting Sudanese President Omar al-Bashir, wanted on genocide charges.
The widely expected judgement slapped Pretoria for hindering the work of the world\’s only permanent war crimes tribunal, of which it is a founding member. But judges also had harsh words for the UN Security Council for years of inaction in the Bashir case.
"The chamber concludes that by not arresting Omar al-Bashir while he was on its territory… South Africa failed to comply with the court\’s request for the arrest and surrender" of the Sudanese leader, said presiding judge Cuno Tarfusser.
This was "contrary" to the court\’s guiding Rome Statute and prevented it from prosecuting Bashir on 10 charges of war crimes, including three of genocide in Sudan\’s western Darfur region.
But the judges stopped short of referring the matter to the UN Security Council, with Tarfusser saying such a move would be "effectively futile" since the council had failed to act in six previous referrals over the Bashir case.
Despite two international arrest warrants issued in 2009 and 2010, Bashir remains in office as conflict rages in Darfur.
In June 2015, Bashir attended an African Union summit in Johannesburg, and despite frantic consultations between ICC and South African officials later flew out of the country unimpeded.
The 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 since ethnic minorities took up arms against Bashir\’s Arab-dominated government in 2003, according to UN figures.
Pretoria\’s lawyers had argued at an April ICC hearing there "was no duty under international law on South Africa to arrest" Bashir.
But the judges ruled international obligations cannot "simply be put aside" if a country disagrees with them, and said in this case Bashir did not enjoy immunity.
"South Africa was under the duty to arrest Omar Al-Bashir and surrender him to the court while he was on South African territory in June 2015," they ruled.
South Africa\’s ambassador to the Netherlands, Bruce Koloane, told AFP legal experts would study the decision to see if "it\’s worthwhile for government to contest that through an appeal process or not."
But South Africa\’s opposition Democratic Alliance party said the ruling was "an indictment on the ANC-led government" which was "intent on relegating South Africa to the status of a scumbag nation which protects the law-breakers and corruptors of this world. "
Bashir, who has been president of Sudan since 1993, has denied all the charges and continues to travel. Khartoum announced Monday he will visit Moscow for the first time in August.
The judges had harsh words for the UN Security Council which has shied away from taking any action against states who have hosted Bashir.
"The past 24 meetings of the Security Council" had failed to take any measures "against state parties that have failed to comply with their obligations," said Tarfusser.
This was "regrettable," he said, and "renders any referral to the Security Council effectively futile."
He insisted however the ruling had removed "any possible ambiguity concerning South Africa\’s obligations."
Based in The Hague, the ICC does not have its own police and relies on countries to arrest or surrender suspects.
And while 124 nations have signed its Rome Statute, the court has struggled to shore up its legitimacy, faced last year with unprecedented withdrawals.
Darfur victim Yousif Ibrahim Fasher told AFP he was happy as people had been awaiting "a tangible result for a long time from the ICC to arrest" Bashir.
Rights groups agreed the ruling sent a warning to other nations.
It was "a victory for international justice" and an important step "in tackling impunity," said Arnold Tsunga, Africa regional director for the International Commission of Jurists.
Amnesty International\’s Netsanet Belay added it was "shocking that other states parties such as Jordan are also failing in their obligations to arrest Bashir … in flagrant violation of international law".