South Africa condemned by international court for failing to arrest Sudanese president accused of genocide

However, judge says that referring the case to the United Nations would be 'futile'

Presiding Judge Cuno Tarfusser of Italy, centre, Judge Chang-ho Chung of Korea, right, and Judge Marc Perrin de Brichambautat of France at the ICC (Evert Elzinga/AP)

The International Criminal Court (ICC) has ruled that South Africa failed to comply with its obligations when it did not arrest Omar Hassan al-Bashir, the Sudanese president wanted by the court on charges of war crimes, during a visit – but said any further action was "futile".

The public gallery was packed as the court addressed for the first time on the obligation that member states of the ICC have to arrest and surrender the Sudanese president.

Mr Bashir remains in office and in addition to the visit to the African Union summit in June 2015, he has been travelling freely since two international arrest warrants were issues against him in 2009 and 2010. The leader was indicted by the ICC in 2008 over the deaths and persecution of ethnic groups in Sudan's Darfur province. Mr Bashir denies the charges.

Explaining the court’s decision not to refer the case on to the UN Security Council or other ICC states, Presiding judge Cuno Tarfusser recalled that six countries had been referred to these mechanisms in the case of the arrest of Mr Bashir alone.

ICC member states Nigeria, Chad, Kenya, Malawi, Djibouti, the DRC and most recently Jordan, have all hosted Mr Bashir and allowed him to depart – some have even received him with guards of honour.

“But there has been no actions against state parties that have failed to comply,” Mr Tarfusser said, a little agitated. Due to this lack of action “any referral to the UN [Security Council] would be futile”.

That statement painfully lays bare one of the most glaring shortcomings of the court – that it cannot do anything without the cooperation of the international community.

Fatou Bensouda, the international court’s chief prosecutor, late last year blamed the Security Council for failing to help her to secure the arrest of Mr Bashir. As a result, the case against Mr Bashir is now “hibernating”.

But it was the UN Security Council who referred the Darfur case to the ICC in 2005. Usually disputes are limited to the 124 states which are party to the Rome Statute, the ICC’s 2002 founding document. Sudan is not a member state – a fact that was also cited by South Africa in defence of letting Mr Bashir leave its soil.

Yet the ICC dismissed that argument. “For the purposes of the situation in Darfur, Sudan is in an analogous situation to those of States Parties as a result of the UNSC’s resolution ... And is under obligation to cooperate fully with the court, ” it ruled.

“I will have to refer this to my higher ups and then we will have to see if we will appeal,” South African Ambassador to the Netherlands Vusi Bruch Koloane told The Independent shortly after the decision.

Central to the case was a disagreement about whether acting heads of state enjoy immunity. On Thursday, the court argued its jurisdiction superseded international diplomatic conduct which can protect heads of state from prosecution.

The decision is the latest in a string of rulings on the issue of arrest and could muddy the waters even more. “The case law of the ICC is partly contradictory on the justification of the duty to arrest. The ICC itself formulated three different explanations in different rulings … The final word on this might have to be spoken by the Appeals Chamber,” said Carsten Stahn, Professor of International Criminal Law and Global Justice at Leiden University.

Immunity for acting leaders is a longstanding source of conflict between the court and the African Union, who feel the court should not get involved in regime change. Thursday’s ruling is unlikely to improve relations between the court and the African Union members, says William Schabas, Professor of International Law at Middlesex University. “They were unhappy with the early rulings of the Court on the issue of immunity for Bashir, and showed it by allowing him to travel to their country. That is unlikely to change,” he wrote in an email to The Independent.

The African Union called for a mass exodus from the Court in February, partially over the immunity issue, as well as accusation that the court is biased. Out of 10 investigations the court has conducted, 9 concern African countries. All three trials concern African leaders. And so far, ICC arrest warrants have only ever been issued for Africans.

South Africa formally notified the UN that it wants to withdraw from the ICC late last year. A domestic tangle on procedural grounds has delayed the process, but as recently as last week authorities made clear that they would press ahead with the withdrawal.

The ICC's decision not to refer South Africa might be intended in part to dissuade it from pulling out of the court, according to Mark Kersten, a legal scholar.

"I think this decision significantly raises the costs for South Africa to leave the ICC. The Court clearly listened to its concerns and there is a consensus that in not referring the government of South Africa to the Assembly of States Parties or the UN Security Council, the ICC was lenient, perhaps at a stretch even understanding of South Africa’s views. This makes it much harder for South Africa to justify leaving the ICC," he said.