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.
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