South Africa violated its obligations to the ICC by failing to arrest Sudan’s President Hassan al-Bashir when he visited in 2015, the court’s judges said in a ruling on Thursday.
However, the war crimes court judges declined to refer South Africa to the UN Security Council over the matter.
They noted that South African courts had already censured the government for its failure in Bashir’s case and said referring it to the UN would likely have little effect.
NAN reports that on April 7, Prosecutors at the ICC urged judges on Friday to report South Africa to the UN Security Council for defying an arrest warrant for Sudan’s president.
The prosecutors made the call when South Africa appeared before it, so that the court could gather information on whether it should report her to the ICC’s governing body, the Assembly of State Parties, or to the UN Security Council for non-compliance with the court.
They said failure to do so could render the court unable to perform its most basic duties.
South Africa told the ICC it believed it was under no obligation to arrest Omar Hassan al-Bashir during a visit to South Africa two years ago even though he was wanted by the permanent war crimes court.
The ICC’s warrant did not outweigh a South African law that grants sitting heads of state immunity from prosecution, South African legal representative Dire Tladi told judges at a hearing to discuss Pretoria’s failure to arrest al-Bashir in 2015.
“There is no duty under international law and the Rome Statute to arrest a serving head of state of a non-state-party such as Omar al-Bashir,” Tladi argued.
Prosecutors said judges should refer South Africa to the United Nations Security Council or the court’s assembly of member states for defying its arrest warrant.
“Without cooperation from the state parties in the arrest and surrender (of suspects) the court will be unable to carry out its most basic function,” said prosecutor Julian Nicholls.
The row between South Africa and the ICC over its failure to arrest al-Bashir, who is accused of genocide and war crimes, led to Pretoria’s notifying the UN in 2016 that it would withdraw from the court.
In January, a South African court blocked the move over procedural issues, but the government has said it will push ahead with the withdrawal.
Al-Bashir denies the charges against him.
Sudan is not a member of the ICC, the court has jurisdiction by virtue of a 2005 UN Security Council resolution referring the conflict to the Hague-based permanent war crimes court.
