South Africa has defended its decision not to arrest Sudanese President Omar Hassan al-Bashir during his visit two years ago.

That was even though the International Criminal Court (ICC) had an arrest warrant for him.

South Africa told the International Criminal Court it believed it was under no obligation to arrest him.

Saying it was caught between its obligations to the ICC, and laws providing heads of state with immunity.

South African legal advisors have told judges at a hearing in The Hague that the ICC warrant did not outweigh the country’s law that grants sitting heads of state immunity from prosecution.

SA Chief state law adviser Sandea De Wet says: “We are a sovereign state, and sovereign states, as you would know, are governed by rules and procedure, and that is what we were looking for, that was not available and it is still not available.”

SA legal representative Dire Tladi says: “Every intergovernmental conference that is hosted by South Africa is done so on the basis of a host country agreement. Each and every one of these host country agreements, not some, not most, every one of them, contains immunity provisions. So it is not the truth to suggest that host country agreement was concluded solely for the protection of one person.”

The row between South Africa and the ICC has led to Pretoria taking a decision to withdraw from the Rome Statute.

“There is no duty under international law, in general and in particular under the Rome Statute, on South Africa to arrest a serving head of a non-state party, and it is our contention that today’s proceedings really turn on this question and it is this question that we intend to focus on.”

Bashir, who has ruled Sudan since 1989, faces ten charges, including three of genocide, as well crimes against humanity, in the western Darfur region.

According to the United Nations, at least 300 000 people were killed and two and a half million displaced. Al-Bashir has denied the charges against him.

Although Sudan is not a member of the ICC, the court has jurisdiction by virtue of a 2005 U.N. Security Council resolution that refers the conflict to the Hague-based permanent war crimes court.

The Court will have to decide whether Pretoria violated its obligations under the court’s founding Rome Statute, by failing to arrest and hand over Bashir for trial.

– By Ndundu Sithole