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SA govt has 5 days to appeal ICC Al Bashir ruling

The ICC found there was no ambiguity on South Africa’s legal position and it was in fact obliged to arrest Omar Al Bashir.

FILE: Sudanese President Omar Al Bashir. AFP

PRETORIA - The South African government now has five days to ask the International Criminal Court (ICC) if it can appeal the finding that it acted unlawfully when it failed to arrest Sudanese President Omar Al Bashir.

The pre-trial chamber handed down its finding in the Hague on Thursday.

The case relates to Al Bashir’s visit to South Africa in 2015 when he attended the African Union summit in Johannesburg.

While government hasn’t officially commented on the ruling, International Relation’s Clayson Monyela expressed relief on social media that the case had not been referred to the United Nations Security Council.

Monyela says no decision has yet been made on whether to appeal the finding.

This does, however, seem unlikely because government abandoned its appeal of a similar finding in the Supreme Court of Appeal locally.

The pre-trial chamber found there was no ambiguity on South Africa’s legal position and it was in fact obliged to arrest the Sudanese President.

The ICC has become the third court to find South Africa acted unlawfully when it failed to arrest Al Bashir.

Despite finding that government violated international law, there will be no sanction.

WATCH: Judge Cuno Tarfusser reads the ICC judgment

Judge Cuno Tarfusser referred to damning findings in South Africa’s High Court and Supreme Court of Appeal.

“It has now been unequivocally established, both domestically and internationally, that South Africa must arrest Omar Al Bashir and surrender him to the court.”

He says any ambiguity as to South Africa’s obligations in terms of the law have been removed.

“In these circumstances, a referral of South Africa’s non-compliance would of no consequence...”

Tarfusser says that decision makes it unnecessary to refer the matter to the security council to ensure compliance.

He says South Africa was clearly obliged to arrest Al Bashir.

“South Africa was not entitled to rely on its own understanding of Article 98 of the Statute [of Rome] to decide unilaterally not to comply with the court’s request for the arrest of Al Bashir.”

He added that, “It therefore appears that the government of South Africa has accepted its obligation to corporate with the court under its domestic legal framework.”

Amnesty International has described government’s conduct as a 'shameful failure', saying no state should follow this example.

(Edited by Winnie Theletsane)

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