Double standards in international law do not give SA carte blanche
The ICC’s non-compliance decisions tends to be toothless, but legal technicalities do not let SA off the hook in not arresting Omar al-Bashir, writes Mia Swart
The spectre of Sudan President Omar al-Bashir continues to hover over the South African government. Last Friday, a delegation of South Africans trekked to The Hague to present arguments to the International Criminal Court (ICC) as to why SA was not in violation of its obligations to the ICC. Under its Rome Statute, the ICC can make a formal finding of non-compliance against a state party if the state is found to have violated its obligations under the statute. This was the first public non-cooperation hearing. States usually shy away from attending them. One reason for this is that states may resist being publicly rapped over the knuckles; in contrast, SA was keen and confident in presenting reasons why it did not breach its undertaking to the ICC by not arresting al-Bashir. The government’s submission stated that, as a sitting head of state, al-Bashir had absolute immunity from the criminal jurisdiction of national courts in foreign states and SA was obliged to respect this immunit...
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