Prosecuting International Crimes in Africa - PULP - University of ...

326 Chapter 14
February 2009 Summit, the AU Assembly adopted a decision expressing
its ‘deep concern’ regarding the indictment (sic) of Al Bashir, and
mandating the AU Commission to dispatch a high-level delegation to the
UN Security Council to advocate for the deferral of proceedings under
article 16. 72 Notwithstanding the AU’s decision, on 4 March 2009, ICC
judges confirmed the international arrest warrant for Sudan’s president.
On 3 July 2009, at the AU Summit of Heads of State and Government held
in Libya, the Sirte Declaration was passed (with South Africa’s full
support) which resolved that African states would defy the arrest warrant
issued by the ICC for Al Bashir. In particular, this resolution categorically
states that member states have refused to co-operate in the arrest and
surrender of the Sudanese president. It is believed that the recent
discontent with the ICC can be traced to the suggestion that ‘the ICC is a
hegemonic tool of Western powers which is targeting or discriminating
against Africans because its first cases flow from this continent’. 73 The
reluctance to comply with the arrest warrant for Al Bashir is in line with
the criticism that the Court’s work is undermining peace efforts or conflict
resolution processes. Furthermore, an objection has been voiced that the
ICC has deigned to proceed against a sitting head of state of a country that
is not a party to the Rome Statute. 74
South Africa’s position was widely condemned 75 until the Ministry of
International Relations and Cooperation confirmed the government’s
commitment to the rule of law. However, by this time the South African
government was embarrassed by the fact that Botswana had shown
exceptional leadership by maintaining a principled position on the
obligations in the Rome Statute while South Africa was vacillating
between wilful disobedience to its own voluntary obligations and respect
for the ICC as an institution which it had helped create. Incidentally, the
government’s reversion to a commitment to the rule of law coincided with
an international arrest warrant for Al Bashir being endorsed by a Pretoria
magistrate. 76
72 Decision on the application by the International Criminal Court (ICC) Prosecutor for the
indictment of the President of the Republic of the Sudan Assembly/AU/Dec 21 Addis Ababa
1-3 February 2009.
73 Du Plessis (n 68 above) 443. This complaint implicates questions about head of state
immunity under customary international law and the extent to which the Rome
Statute’s provisions which strip that immunity can be made applicable to President Al
Bashir.
74 Du Plessis (n 68 above) 442.
75 This criticism against the South African government’s approach took the form of a
statement dated 15 July 2009 signed by several South African civil society organization
and many concerned individuals calling upon President Jacob Zuma to honour South
Africa’s treaty obligations by cooperating with the ICC in relation to the warrant of
arrest issued for President Omar Al Bashir. The General Council of the Bar of South
Africa also issued a statement (GCB Circular No 111/09, 15 July 2009) criticising the
government’s apathetic approach to our obligations under the Implementation of the
Rome Statute of the ICC Act and our Constitution. See du Plessis (n 68 above) 444.
76 This information is obtained from the report by Dr Ayanda Ntsaluba, Director-General
of the Department of International Relations and Cooperation for the period January
to December 2009 (on file with author).