The Prosecutor of the International Criminal Court says the resolve of her office is unshakable and that they will continue in their efforts to bring those responsible for crimes in Sudan’s Darfur region to justice.

Fatou Bensouda was providing her 26th report on Darfur to the Security Council after it referred the situation there to the ICC in 2005, the first time the Council had handed any situation over to the Court despite Sudan being a non-state party to the Rome Statute.

Bensouda also cited a July ruling by The Hague Court against South Africa arguing that it established there was no legal or factual justification for the country’s failure to comply with its obligations in surrendering Sudan’s President Omar Al Bashir to the Court.

It was the Security Council that asked the ICC to investigate and pursue the matter of crimes against humanity in Darfur in 2005.

But since the Court has issued an arrest warrant for President Bashir in 2009, the Council has done nothing to effect the Court’s decision.

Bensouda says, “I regret to note that over the years my reports have highlighted the consistent failure of the Council to act when a number of States Parties to the Rome Statute have welcomed Mr Omar Al Bashir as an ICC suspect to their territories. These States Parties have failed to comply with the Court’s requests for his arrest and surrender, despite a clear treaty obligation to do so. In most cases, a lack of legal clarity has been claimed to justify the failure to arrest and surrender Mr Al Bashir.”

She argued that the Court’s recent judicial pronouncements have reaffirmed that the is no legal ambiguity concerning a States Parties’ obligation to arrest and surrender ICC suspects to the Court’s custody when they travel to their territories.

She said the Pre-Trial Chamber’s decision against South Africa in July sent a clear message.

This important decision by the Chamber, which was not appealed by either party, establishes that there was no legal or factual justification for South Africa’s failure to comply with its obligations under the Statute to arrest and surrender Mr Al Bashir to the Court.

The Chamber, through this decision, has sent a clear message, and that is, in such circumstances, there can be no justification for States Parties to fail to arrest a suspect against whom an ICC warrant of arrest has been issued, irrespective of that person’s official status.

South Africa has struggled to reconcile the immunity granted a head of state with obligations to comply with the arrest warrant in additional to matters of peace and security in Africa that such an arrest might undermine.

But Bensouda urged the Council to uphold its responsibilities.

“It is my Office’s hope that this message will be heeded and furthermore, that this Council will do its part to enforce decisions by the Court in relation to situations which the Council itself has referred to the Court. This specific inter-institutional role is clearly envisaged by the Rome Statute and codified, as negotiated during the Rome Conference, which also saw the participation of permanent members of the Council.”

South Africa Justice Minister last week indicated he would shortly begin the parliamentary process to withdraw the country from the Rome Statute.