South Africa was yesterday to defend its failure to arrest visiting Sudanese President Omar al-Bashir, who is wanted on charges of genocide, at an unprecedented hearing before international war crimes judges.
It was to be a humbling moment for Pretoria — one of the leading voices in the creation of the International Criminal Court (ICC) — whose lawyers will be fending off accusations that it failed in its obligations to the tribunal.
To the frustration of the court’s prosecutors, al-Bashir remains in office and at large, despite two international warrants for his arrest issued in 2009 and in 2010. He faces 10 charges, including three of genocide, as well as war crimes and crimes against humanity in Sudan’s western Darfur region.
A deadly conflict broke out in 2003, when ethnic minority groups took up arms against al-Bashir’s Arab-dominated government, which launched a brutal counterinsurgency.
At least 300,000 people have been killed and 2.5 million displaced in Darfur since, the UN has said.
Several victims of the lingering conflict in the region, who now live in the Netherlands, were scheduled to attend yesterday’s hearing.
The UN Security Council as early as 2005 asked the court to probe the crimes in Darfur, where conditions remain “dire,” rights group International Justice Project executive director Monica Feltz said.
The 10 Darfurians who were scheduled to watch the hearing were “hoping to see that their story is told, and that their voices are heard, and that the international community still cares,” Feltz told reporters.
“They’ve been waiting for over eight years to see justice in this case,” she added, voicing disappointment that the victims were not granted permission to actually take part in the hearing.
The issue centers on South Africa’s refusal to arrest al-Bashir when he attended an African Union summit in Johannesburg in June 2015, insisting he had “head of state immunity” and allowing him instead to slip out of the country.
The judges will have to decide whether Pretoria violated its obligations under the court’s founding Rome Statute by not arresting him and handing him over for trial.
South Africa has insisted that it was caught on the horns of a dilemma: between its obligations to both the court and to laws providing heads of state with immunity.
The prosecutors have hit back, pointing out that South Africa had previously told al-Bashir he would be arrested if he set foot in the country.
“No one is above the law, even heads of state,” Feltz said.
The hearing is “a historic opportunity for the court to demonstrate that its charges must be taken with extraordinary seriousness,” Wanda Akin and Raymond Brown, two legal representatives of the victims, said in a joint statement.
They urged the court to send “an unmistakable message that open defiance of its writ will not be permitted.”
The judges are to return their decision at a later date and might decide to report South Africa to the Security Council for eventual sanctions.
Although this is the first public hearing of its type, last year the court referred Chad, Djibouti and Uganda to the UN for also failing to arrest al-Bashir. So far, no action has been taken against them.
The Sudanese leader was last month a guest at an Arab League summit hosted by Jordan — also a signatory to the Rome Statute.
South Africa had moved to withdraw from the court, angered by the case against it.
However, it last month formally revoked its decision after the South African High Court ruled in February that it would be unconstitutional.
Although the date of the hearing was set late last year, it also comes at a moment of political tension in South Africa, as embattled South African President Jacob Zuma faces growing calls to resign.
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