ICC moves preemptively to ensure SA arrests Bashir if he visits again

She asked the court’s judges on Tuesday to remind South Africa that it was still obliged to arrest him even if Pretoria was still in dispute with the ICC and in its own courts over Al-Bashir’s last visit in June.

Bensouda said in a statement here that there were indications that Bashir might travel to South Africa again. This seemed to refer to the possible attendance of the Sudanese leader at the Forum on China-Africa Cooperation (Focac) which is taking place in Sandton on December 4 and 5.

Bensouda noted that the South African government had recently stated to its own courts that “given both bilateral relations between South Africa and Sudan, as well as their co-membership of the African Union, there is every likelihood that [Al Bashir] will return to South Africa”.

South African officials have said privately that Al-Bashir would not come to South Africa for Focac but Bensouda seemed to be taking no chances.

She appeared to be concerned that the continuing legal wrangles over Al-Bashir’s June visit might give Pretoria a pretext not to arrest him if he does enter South Africa again.

Bensouda also asked the ICC’s Pre-Trial Chamber II for an opportunity to argue before it that South Africa should be given a definite deadline to inform the ICC why it did not arrest Al-Bashir when he visited South Africa for the African Union (AU) summit in Sandton in June.

The ICC originally gave Pretoria until October 5 to submit its reasons for disobeying an explicit request from the court, on June 13, to arrest Bashir. The court would then decide if South Africa had violated its obligations to the ICC to arrest Al-Bashir. If so it would be referred to the UN Security Council for possible punishment.

On October 2, the South African government asked the ICC for more time to submit its reasons for not arresting the Sudanese leader, as it said the South African courts were still dealing with the same issue. The South African government has appealed the decision by the North Gauteng High Court that the government violated the South African constitution by failing to arrest Al-Bashir.

On October 15, Judge Cuno Tarfusser, presiding over the ICC’s Pre-Trial Chamber II granted Pretoria’s request for an extended deadline to submit its reasons. He ordered South Africa to promptly inform the ICC of any relevant developments in the South African court case. If there were no developments by December 15, South Africa should inform the ICC by December 31 of the state of the legal proceedings.

But in her statement this week, Bensouda complained that the Pre-Trial Chamber had not consulted her before making this decision. She said that the chamber’s order to South Africa had been too open-ended as the time frame for completion of the legal proceedings currently before the Supreme Court of Appeal was unpredictable – “it could last well into 2016”.

She said that an attorney for the South African Litigation Centre (SALC) – which brought the original case against the South African government – had told her office it was unlikely that the Supreme Court of Appeal would begin to hear the government’s appeal this year. And if the case reached the highest court in South Africa, the Constitutional Court, “the proceedings could stretch to the end of 2016”.

So she proposed to the Pre-Trial Chamber that if there had been no significant developments in the South African case by December 15, the South African government should be given a definite deadline of about December 31, to submit its reasons for not arresting Bashir in June.

In the meantime, the ICC should make it very clear to Pretoria that the continuing legal proceedings in South Africa and the dispute with the ICC did not relieve it of its obligations to arrest Al-Bashir if he visited South Africa again.

She said the Pre-Trial Chamber had stressed in its October 15 decision that the case between the ICC and South Africa and the case in the South African courts were completely independent of each other.

Bensouda also asked the judges, in the interests of transparency, to make public the confidential findings related to Bashir’s visit to South Africa in June.

This was because her office “takes issue” with the way South Africa had represented how the so-called article 97 consultations between Pretoria and the ICC took place just before Al-Bashir’s visit.

Bensouda said the ICC had notified the South African government “at 12h40 on 13 June 2015” – the day Al-Bashir arrived in South Africa – that the article 97 consultations, which had taken place the day before, had ended.

Yet the South African government had maintained, in its request for more time to respond to the ICC, that these consultations constituted only a “preliminary meeting between the Government and the Court” and that “it was the understanding of the Government that the official Article 97 consultations were to take place on Monday, 15 June 2015”.

Bensouda also objected to South Africa’s complaint that it had not been given any prior warning or notice of her urgent request to the Pre-Trial Chamber on June 13 for clarity regarding the Article 97 consultations.

Bensouda said her office had not been obliged to give South Africa such notice but it had in fact – out of courtesy – informed South Africa of its request to the court immediately after it had been filed before Tarfusser had delivered its decision that South Africa must arrest Al-Bashir.

“Lifting the confidentiality of all previous filings associated with South Africa’s failure to arrest and surrender Al Bashir will publicly clarify the record and correct any misconceptions that may have been created about the nature of the article 97 consultations and the filing of the Prosecution’s urgent request,” Bensouda said. – ANA

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