Cape Town – When South Africa agreed with the African Union (AU) 2009 decision not to co-operate with the International Criminal Court (ICC) on the arrest of Sudanese President Omar al-Bashir, the country should have taken steps to withdraw from that court system, said Unisa professor of law Jeremy Sarkin.
“We can’t hide behind the circumstance we’re in and then make legal arguments later,” he said at Thursday’s Institute for Justice and Reconciliation seminar on the impact of al-Bashir’s recent controversial stay in and departure from South Africa.
However, Sarkin added, now South Africa’s position on international justice was clearer than anytime over the past 10 years, even as it is walking a tightrope between obligations to the AU and Brics (Brazil, Russia, India, China and South Africa) and other international responsibilities.
The July 3, 2009 AU resolution, taken after the AU request for a stay of prosecution of al-Bashir was not acted on by the UN Security Council, was followed by the AU’s 2013 decision that sitting heads of state could not be prosecuted.
This 2013 decision was cited by the government as binding it during the al-Bashir controversy, as was the immunity given to al-Bashir and all other participants in last month’s AU summit at the Sandton Convention Centre.
Cabinet last week decided to discuss the al-Bashir matter with the ICC and could “as a last resort also consider withdrawing from the ICC”.
South Africa was the first African country to sign up to the ICC and adopted the court’s founding Rome Statute into domestic law in 2002.
The ICC has 123 full members who signed and ratified the Rome Statute, but not countries like Sudan, the US, Israel, China, Russia and India.
University of Pretoria international law professor Dire Tladi, also special adviser to International Relations Minister Maite Nkoana-Mashabane, argued al-Bashir was covered by the immunity under customary international law.
Those provisions trumped the ICC founding statute’s provisions in Article 27 that immunities were no bar to the court exercising its jurisdiction.
Speaking in his personal capacity, Tladi argued, the North Gauteng High Court was mistaken in finding there was no immunity.
He also criticised the prevailing “friend-foe, hero-villain” narrative, saying the matter was a myriad of complexities.
“Anyone who tells you it’s simple and straightforward is lying”.