The International Criminal Court (ICC) has ruled that South Africa violated its agreement with the war crimes court by failing to arrest Sudanese President Omar al-Bashir, wanted for genocide in Darfur, in 2015.
Handing down judgment on Thursday, it said that South Africa was not entitled to decide unilaterally not to co-operate with the court.
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 his arrest and surrender, presiding judge Cuno Tarfusser said.
By not arresting him‚ South Africa failed in its duty to comply with the court’s request for his surrender.
This prevented the court from exercising its functions and powers‚ the ICC said in its finding.
SA had argued for Al Bashir’s immunity under customary international law on account of his position as a sitting head of state‚ and the immunity agreement South Africa concluded with the African Union for the AU heads of state summit.
The court said it did not agree with this submission.
It said Article 27.2 of the Statute excluded the immunity for heads of state from arrest.
The court said the court’s jurisdiction to act was triggered by the United Nation’s security council resolution‚ which referred the prosecution in Darfur to the prosecutor in the ICC.
The ICC had issued a warrant for his arrest in 2009 and another in 2010 on charges of war crimes allegedly committed in his country between 2003 and 2008.
However, the judges declined to refer the matter to the UN Security Council, which has tasked the ICC with prosecuting war crimes in western Darfur.
Still at large
Despite two international arrest warrants, issued in 2009 and 2010, Bashir remains at large and in office as conflict rages in the western Sudan region of Darfur.
The long-time ruler has denied the ICC's charges, including accusations of genocide, war crimes and crimes against humanity.
South Africa and the ICC became embroiled in 2015 when Bashir attended an African Union summit in Johannesburg. Despite the arrest warrants, Bashir then flew home unhindered.
At a landmark hearing in April, South Africa disputed accusations by the ICC's prosecutors that it had broken its obligations to the tribunal it helped found in 2002.
Carsten Stahn, international criminal law professor at Leiden University in the Netherlands, earlier told TimesLIVE that a decision against South Africa "would send the message that states cannot negotiate [their] legal obligations with the court".
President Jacob Zuma last week reiterated the government's intentions to pull out of the ICC, saying it was "rectifying procedural challenges". But a court in February ordered it to reverse the decision as unconstitutional.
Read the ICC's case information sheet
