Nicholls says the only reason he wasn’t arrested was because Pretoria disagreed with a High Court ruling instructing the government to apprehend him. Nicholls says that South Africa “had the ability to arrest and surrender him and it chose not to do so,” allowing Al Bashir and his delegation to fly home unimpeded from a military air base.
In the end the only reason Pretoria did not arrest him was “that South Africa disagreed with the court’s jurisprudence, the law as set out… so it did not comply.”
South African counsel Dire Tladi earlier disputed accusations it had broken its obligations to the tribunal.
Tladi argued there was no duty under international law to arrest a serving head of a non-state party. Al-Bashir is wanted for war crimes committed in Darfur and several victims of the conflict attended the hearing in The Hague.
Several victims of the conflict, who now live in The Netherlands, attended the day long hearing at the tribunal in The Hague.
“We know that Bashir will come to the ICC one day, if he’s alive,” Yousif Fasher, 30, told AFP.
“It will take time, five years, 10 years, two years, six years. But one day he has to come and stand in front of the ICC. That’s our message to South Africa.”
Presiding judge Cuno Tarfusser said the aim of the hearing was to decide “whether South Africa failed to comply with its obligations… by not arresting and surrendering Omar al-Bashir… while he was on South African territory.”
The prosecution argues that since the ICC does not have its own police force it relies on member states to help execute arrest warrants.
Without such help, “the court’s going to be unable to carry out its most basic function: putting on trial persons charged with the most serious crimes,” Nicholls said.
Tarfusser said at the end of the hearing that he hoped the judges would return their decision before the court’s summer recess, and would do so in another public hearing.
The judges may decide to agree with the prosecution’s request to report Pretoria to the UN Security Council for non-compliance and eventual sanctions.
But Pretoria’s lawyers said such a move would be “unwarranted and unnecessary”, aimed only at casting South Africa “in a bad light”.
Although this is the first public hearing of its type, last year the ICC referred Chad, Djibouti and Uganda to the UN for also failing to arrest Bashir. So far no action has been taken against them.
The Sudanese leader was also a guest last month 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.
But it formally revoked its decision last month after its own High Court ruled it would be unconstitutional.
– By AFP