Fatou Bensouda, the International Criminal Court (ICC) chief prosecutor, has asked ICC Judges to assert South Africa’s obligation to arrest al-Bashir if he returns to the country. 

She has also asked for a definite timeframe for which South Africa can explain the circumstances which al-Bashir was allowed to leave South Africa despite an arrest warrant by the court.

Al-Bashir visited South Africa in June this year for the African Union summit in Sandton. 

Bensouda wants the court to assert South Africa’s obligation to arrest al-Bashir as a signatory to the Rome Statute. 

“South Africa has recently stated in its domestic court filings that given both bilateral relations between South Africa and Sudan, as well as their co-membership of the African Union, there every likelihood that [al-Bashir] will return to South Africa,” the prosecutor noted in her submission.

She said that the judges should make it clear to South Africa that the extension afforded to them to provide an explanation or the ongoing domestic legal process has no bearing on the country’s obligation to arrest al-Bashir. 

There has been talk of al-Bashir returning to South Africa for the Forum Of China-Africa Cooperation (FOCAC) meeting to be held in South Africa in December.

President Jacob Zuma has indicated that Sudan would not be excluded from the meeting but would not give an indication whether al-Bashir would attend.

Sources at the department of international relations and co-operation have indicated that al-Bashir would not attend the meeting in December and the Sudanese delegation would instead be led by the foreign minister. 

“South Africa’s continuing obligation to arrest and surrender al Bashir is clear and unambiguous,” Bensouda noted in her submission. 

She has also expressed concern with the time frame given to South Africa regarding their needed explanation as to why it did not arrest al-Bashir.

On October 15, the court gave the South African government more time after it asked for an extension to the deadline due to the ongoing legal battle taking place in South African courts.

The judges decided that if the court process in South Africa was not finalised by December, it should give an update on where things stand by December 31.

Currently, government has approached the Supreme Court of Appeal to overturn a finding made by the high court that government’s failure to arrest al-Bashir was unlawful and unconstitutional.

The high court also ruled that South Africa’s domestication of the Rome Statute overrides any immunity offered to heads of state in respect of ICC warrants of arrest.  In September, the high court in Pretoria dismissed government’s application for leave to appeal the earlier judgment.

The court further affirmed South Africa’s obligation to the ICC.

North Gauteng High Court Judge Hans Fabricuous said at the time that a full bench believed that no other court would rule in favour of government. 

In her submission to the ICC judges, Bensouda noted that the domestic legal process in South Africa may last well into 2016.

She wants clarity on whether South Africa would be given an extension if the domestic court battle would not be concluded by the end of the year.

“The prosecution requests that the pre-trial chamber afford the prosecution the opportunity to be heard on the steps to be taken should the domestic legal proceedings in the Republic of South Africa not to be finalised by 31 December 2015, with respect to a deadline for South Africa to submit its views for the purposes of proceeding under article 87(7),” she submitted. 

At the same time, the ANC resolved earlier this month that South Africa should withdraw from the ICC.

ICC spokesperson Fadi El Abdallah told a delegation of South African journalists visiting the ICC that from whenever South Africa takes the decision to withdraw from the ICC there would be a 12 month period to honour.

Abdallah said that whether South Africa decided to leave or not, it has no bearing on the current matter involving Bashir.

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