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SA government asks for more time to respond to ICC over Bashir matter

───   17:52 Mon, 05 Oct 2015

SA government asks for more time to respond to ICC over Bashir matter | News Article

Johannesburg - The South African government has asked the International Criminal Court (ICC) for more time to respond to the court’s request for an explanation of why it did not arrest Sudanese President Omar al-Bashir when he visited South Africa in June.

The government has also accused the ICC of a “serious infringement” of its ICC rights because it did not allow it to present legal arguments before Al-Bashir arrived in South Africa, on why he should be allowed to attend the African Union summit in Johannesburg.

Monday was the deadline which the ICC gave Pretoria on September 4 to explain why, as an ICC member, it apparently breached its obligations to cooperate with a request from the court to arrest Bashir.

If the ICC determines that South Africa did breach its obligations, the court may refer it to the UN Security Council and/or to the ICC Assembly of States Parties for further action.

But on Monday International Relations and Cooperation Minister Maite Nkoana-Mashabane said her government had approached the ICC for more time to respond to its request.

“This was done in view of the complex and conflicting legal principles involved, both in international and in South African domestic law, and the fact that the South African domestic courts are still seized with the matter,” she said in a statement.

She added that South Africa would also approach the Secretariat of the Assembly of States Parties (ASP) to the Rome Statute, the political body governing the ICC. Pretoria would ask next month’s meeting of the ASP to discuss the rules and procedures concerning consultation between the ICC and its member states and concerning immunity from prosecution of servings heads of state and government of states which are not ICC members, like Sudan.

The dispute with the ICC arose from meetings which the South African government had with the court just before Al-Bashir arrived in the country for the AU summit. The ICC wrote to South Africa on May 28 reminding it that it was obliged to arrest him and surrender him to the court if he attended the summit. The ICC also invited South Africa to consult with the court if it had any problem with the request to arrest Al-Bashir.

The day before Al-Bashir arrived, South Africa did approach the ICC to consult with it because, as Nkoana-Mashabane said, South Africa was faced with possible conflicting obligations between the request to arrest Al-Bashir “and the immunities that international law accords to serving Heads of State and Government, as acknowledged by Article 98 of the Rome Statute…” of the ICC.

However the minister added that what South Africa interpreted as a diplomatic and political consultation, “was morphed into a judicial process” when the ICC prosecutor urgently applied to the ICC for an order obliging South Africa to arrest Al-Bashir.

“South Africa was unfortunately not afforded the opportunity to present legal arguments on this application, and hence it is of the view that the principles of justice were not adhered to.

“In view of the above, South Africa is of the view that a serious infringement of South Africa’s rights as a State Party (to the Rome Statute) has taken place and the Court has acted against the letter and spirit of the Rome Statute.”

The minister also recalled that the North Gauteng High Court had found that the government’s failure to arrest Al-Bashir was unconstitutional and said the government was seeking leave to appeal against this finding.

She added that the government remained committed to international criminal justice and to cooperate with the ICC in pursuit of it. The discussions which South Africa had requested in the Assembly of States Parties “will serve to enhance the proper execution of international justice.”

She made the statement in Midrand after addressing the Pan African Parliament (PAP) which last week withdrew an invitation for ICC Prosecutor Fatou Bensouda to address the PAP this week, because of the AU’s row with the court.

AU leaders in 2011 resolved that AU member states must not cooperate with the ICC in arresting Al- Bashir. It said the ICC was picking on Africa as all it prosecutions to date had been of Africans.

ANA

 

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