The South Africa government on Friday has refuted claims it contravened international law by refusing to arrest visiting Sudanese President Omar Bashir accused of war crime charges in Darfur.
At an extraordinary sitting at the International Criminal Court, Pretoria, it disclaimed accusations of inaction in its obligations to the very tribunal it helped found.
There “was no duty under international law on South Africa to arrest the serving head of a non-state party such as Mr Omar al-Bashir,” argued Pretoria’s legal advisor Dire Tladi.
In spite of two international arrest orders issued in 2009 and 2010, Bashir is yet to be arrested and remains in office amidst the raging conflict in the western Sudanese region of Darfur.
Bashir has denied the ICC’s charges, detailing three accusations of genocide as well as war crimes and crimes against humanity.
Sudan was thrown in turmoil in 2003 when ethnic minority groups took up arms against Bashir-led government, which launched a ruthless counter-insurgency.
The ICC in 2005 was directed by The UN Security Council to investigate the crimes in Darfur, which has left not less than 300,000 dead and 2.5 million homeless, UN figures showed.
Pretoria, had earlier sought clarification from ICC judges prior to Bashir’s visit in 2015, and advocated the Sudanese leader status offering him immunity as a head of state.
There was “nothing at all” in the UN resolution which waived Bashir’s immunity, Tladi claimed.
Owing to that, Pretoria could not arrest him while in South Africa for an African Union Summit in June 2005, in spite of its duty to collaborate with the ICC, as established in the tribunal’s founding Rome Statute.
“The duty to arrest Mr Omar al-Bashir was not as clear as the office of the prosecutor would suggest,” Tladi argued.