Posted On July 6, 2017 By In None With 130 Views

ICC says S.Africa broke rules by failing to arrest Bashir

The Hague, July 6, 2017 (AFP)

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 its 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 for further action, with Tarfusser sharply criticising the world body, 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 at large and in office as conflict continues to rage in Darfur.
In June 2015, he 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 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 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, arguing there was “nothing at all” in the UN resolution to waive his diplomatic immunity.
But ICC prosecutor Julian Nicholls shot back that South Africa “had the ability to arrest and surrender him and it chose not to do so.”
Judges agreed in Thursday’s ruling that international obligations cannot “simply be put aside” if a country disagrees with them, and ruled that in this case Bashir did not enjoy immunity.
– Referral ‘futile’ –
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. Russia announced late last year it was withdrawing its signature of the Rome Statute.
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 instigate any measures “against state parties that have failed to comply with their obligations,” said Tarfusser.
This was “regrettable,” he said, warning it led to the court’s “inability” to exercise its functions and “renders any referral to the Security Council effectively futile.”
He insisted however that the ruling had removed “any possible ambiguity concerning South Africa’s obligations.”
Based in The Hague, the ICC does not have its own police or enforcement body and relies on other countries to arrest or surrender suspects.
And while 124 nations have signed the Rome Statute which underpins the court, it has struggled to shore up its legitimacy at times, faced last year with unprecedented withdrawals.
– ‘Victory for justice’ –
Rights groups however, welcomed Thursday’s ruling saying it sent a warning to other nations.
It was “a victory for international justice,” said Arnold Tsunga, Africa regional director for the International Commission of Jurists.
“It is an extremely important step toward tackling impunity in Sudan and worldwide,” he added.
Amnesty International’s Netsanet Belay added it was “shocking that other states parties such as Jordan are also failing in their obligations to arrest Al-Bashir and this decision makes it clear that they do so in flagrant violation of international law”.

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