If there were no developments by December 15, South Africa should inform the ICC by December 31 of the state of the legal proceedings.
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“Now we can not say if that was a violation by South Africa or not because it will be for the judges to decide on that”.
The South African government, however, did not arrest President al-Bashir, despite the country’s High Court order to do so. The ICC is now in unchartered territory about what to do should Pretoria be found to be in defiance of an arrest warrant.
It is ironic that while the ANC has attacked the ICC as “an instrument that no longer acted freely”, the South African courts have gone on to issue extra-territorial judgments that affect sovereign nations.
The ICC prosecutor wants to be heard on whether any further extension of time should be allowed to South Africa to provide its views if domestic legal proceedings have not been finalised by December 31.
Because of the possibility of Al-Bashir returning to South Africa for Forum on China-Africa Cooperation (FOCAC) in December, Bensouda wants the court to also confirm that South Africa has a continuing obligation to arrest and surrender Al-Bashir should he travel to the country again.
But in her statement this week, Bensouda complained that the Pre-Trial Chamber had not consulted her before making this decision. “The time frame for completion of the proceedings before the Supreme Court of Appeal is unpredictable; it could last well into 2016”.
Sudan has previously accused the ICC of being a political tool to target African leaders.
This follows judgments that were issued by South African courts enforcing a judgment passed by the disbanded sadc Tribunal that resulted in a property belonging to the Zimbabwe Government being auctioned two weeks ago. The test was whether the crimes “shocked the conscience of humanity”, Mochochoko said.
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.
But Mochochoko said this would be impossible as the ICC and ICJ were two completely separate, equal and independent courts and the ICJ had no jurisdiction over the ICC. “Africans must investigate and prosecute these cases themselves, genuinely, not just to try and shield people”, Mochochoko said.
Ghandour, who was addressing the preparatory ministerial meeting for the third India-Africa summit in New Delhi Tuesday, pointed that his country didn’t benefit from the various initiatives to cancel the debts of the developing countries including the Heavily Indebted Poor Countries (HIPC) initiative despite meeting all the technical requirements. South Africa is also relying on Article 97 and 98 of the Rome Statute, which spells out when requests can not be executed, such as in the case of diplomatic immunity.
“And given the role that South Africa played in the formation of the ICC, and the progressive role it has now taken, for it to withdraw from this worldwide instrument that protects the rights, and fights against impunity, it would just be retrogressive”. Should the matter come before the Security Council, South Africa might have to lobby its allies such as Russian Federation and China to veto any censure.
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In 2013, the AU passed a resolution that no sitting African head of state should be tried before the ICC – a direct jab at the court’s warrants for the arrest of Kenya’s president Uhuru Kenyatta and his deputy William Ruto on charges of instigating violence in aftermath of the country’s 2007 election.
