South Africa's defiant defence at The Hague of its decision not to arrest the Sudanese President at the 2015 Head of States' African Union Summit in Pretoria threatens to further undermine the credibility the beleaguered International Criminal Court (ICC).
As a signatory of the Rome Statute of the ICC (1998), South Africa was issued arrest warrants in 2009 and 2010 ordering it and other signatory states to apprehend President Omar Al-Bashir. Like many countries before it, Pretoria decided to ignore the request. "There was no duty under international law on South Africa to arrest the serving head of a non-state party," said legal advisor Dire Tladi at The Hague last Friday.
After a day-long session the court's presiding judge, Cuno Tarfusser, said the ICC would decide before the summer recess in July whether or not to refer South Africa to the United Nation Security council for non-compliance.
Central to the case is a complex legal argument involving the choice between two competing articles of the Rome Statute and customary international law. In general, under Article 27(2), states that are signed up to the ICC are obliged to comply with the request by the court to surrender or provide assistance if the subject of the arrest warrant is found on their territory. However, the ICC Statute also provides in Article 98(1) that "the court cannot make a request for surrender or assistance if it would require the requested state to breach its obligations under Customary International Law with regard to state or diplomatic immunity."
South Africa appears to have taken the position that many experts of International law support. Professor Paola Gaeta, Director of the Geneva Academy of International Humanitarian Law and Human Rights, in her study: "Does President Al Bashir Enjoy Immunity from Arrest?" concluded that signatories to the ICC are not obliged to comply with the request to surrender President Al Bashir.
Despite this, by holding South Africa accountable the ICC is hoping to add another African country to Chad, Djibouti and Uganda all of whom were judged last year as non-compliant states. So far 11 countries have been referred for non-compliance but no action has been taken against any of them. However, the ICC prosecutors were not convinced last week by Pretoria's defence, "South Africa had the ability to arrest and surrender him (Al-Bashir) but it chose not to do so. The only reason Pretoria did not arrest him is because it disagrees with the court's jurisprudence as set out in Article 27(2) so it did not comply," said Prosecutor Julian Nichols.
Eight years (almost 3,000 days) after the March 2009 arrest warrant was issued, frustration among the ICC is beginning to show. The Sudanese president appears to be emboldened and has travelled more frequently since the arrest warrant than prior to it. His latest visits to Kuwait and then to Saudi Arabia this week will mean that he has flown more than 80 times, to over 23 different countries, unimpeded.
In June 2016, in a statement to the UN Security Council, ICC Prosecutor, Fatou Bensouda, urged the UNSC to take action against the Sudanese President. "To be clear, Sudan's failure to cooperate with the Court amounts to non-compliance – not least, it is in breach of Resolution 1593. This Resolution has, in effect, brought Sudan under the full breath and ambit of the Rome Statute legal framework," she said.
"As it concerns Rome Statute States Parties, a failure to arrest and surrender would not only constitute a violation of the Resolution but a breach of their Rome Statute obligations – indeed, treaty obligations," the ICC prosecutor added.
Despite the ICC prosecutor's plea that the Rome Statute "not be sacrificed at the altar of political expediency," Bensouda and her colleagues will be aware that China, United States, Israel and many other countries have not ratified the treaty and neither has Sudan. These countries are, therefore, outside the jurisdiction of the court making the ICC powerless and unable to apply arrest warrants without an enforcement agency of its own.
Perhaps the strongest disincentive against Al Bashir's arrest has been the stance that the African Union (AU) has taken. In 2009, the AU signed a declaration expressing concern that Al-Bashir's indictment would derail the Darfur Peace Process. A year later, it signed another declaration affirming the AU would not enforce the warrant against Al-Bashir and by 2015, the AU called on the UN Security Council to suspend proceedings against the Sudanese president urging them to withdraw the ICC referral.
Whilst the UNSC has not responded to the AU, it has made no moves to sanction the countries that the ICC say have not complied with the requirements of the court. Al Bashir has not flown to Western countries yet but Sudanese cooperation with the West on security issues, the fight against terrorism, a reduction of fighting in Darfur and a move to introduce greater political freedoms has ensured that his presidential passport continues to be stamped with entry visas.
The fate of South Africa is, therefore, immaterial to the broader question of whether or not Al-Bashir will continue to travel despite the warrant for his arrest. But it looks likely that Pretoria will join the long list of countries that have been referred to the United Nation's Security Council for non-compliance. The addition of yet another country that the UNSC will not punish only helps to further undermine the ICC's credibility.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.