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S. Africa may quit ICC over Bashir row: presidency

South Africa said Thursday it may withdraw from the International Criminal Court after an outcry over the government’s refusal to arrest Sudanese President Omar al-Bashir on genocide charges.

Bashir, who is wanted by the ICC on charges genocide, war crimes and crimes against humanity, left South Africa last week after attending an African Union summit despite a court in Pretoria barring his departure while it ruled whether he could be arrested.

The government — which came under fire from the ICC, rights groups, other governments and the South African opposition for failing to detain Bashir — said it had decided to review its standing with the international court.

“South Africa may as a last resort… consider withdrawing from the ICC,” Minister in the Presidency Jeff Radebe told reporters.

“Such a decision will only be taken when South Africa has exhausted all remedies available to it in terms of the Rome Statute,” he added, referring to the court’s founding treaty.

A panel of ministers will discuss the dispute with the ICC while South Africa may also take it up with the International Court of Justice, Radebe said.

“South Africa will enter into formal negotiations with the ICC on this matter with the view of understanding the ICC’s reasoning.”

The government has claimed that because Bashir was attending an AU summit he had immunity from arrest.

But on Wednesday the High Court in Pretoria dismissed this argument, and said the government had been under an obligation to arrest Bashir.

It even urged prosecutors to consider criminal charges over the government’s failure to prevent Bashir from leaving the country.

In an explanatory affidavit to the court Thursday, South Africa’s immigration chief suggested Bashir had sneaked out of the country.

Director of immigration services Mkuseni Apleni said airport officials were aware of the order to stop Bashir from leaving South Africa, but his passport was not among the stack handed over to an immigration officer on duty at the time of boarding.

He was able to board his flight because “passengers on a VIP flight do not personally appear before the immigration officer on duty,” Apleni said in the affidavit seen by AFP.

Analysts said South Africa’s move to re-think its membership to the ICC appears to be politically driven.

– Evading justice –

South Africa was “deeply” involved in the drafting of the statute that created the ICC in 1998 and is considered one of its founding members, said Anton du Plessis of the Pretoria-based Institute for Security Studies (ISS).

But many AU members have since accused the ICC of targeting African leaders only, highlighting that major powers — such as Russia, China and the United States — have refused to place themselves under The Hague-based ICC’s jurisdiction.

“Politics is now getting in the way and South Africa needs to decide whether to choose politics over the law,” Du Plessis said.

Radebe said South Africa had to “balance its obligations to the ICC with its obligations to the African Union and its obligations to individual states.”

ISS executive director Jakkie Cilliers pointed out that if South Africa was “unhappy (with the ICC structure) it should have voiced concerns before the AU summit.”

Bashir has evaded justice since his indictment in 2009 for alleged grave crimes in the western Sudanese region of Darfur.

The conflict began in 2003 when black insurgents rose up against his Arab-dominated government, protesting they were marginalised.

Khartoum unleashed a bloody counter-insurgency, using the armed forces and allied militia.

The United Nations says 300,000 people were killed in the conflict and another 2.5 million forced to flee their homes.

The ICC was not immediately available to comment on South Africa’s threats to pull out, but the Rome Statute says a country could withdraw as a state party by written notification to the UN Secretary-General.

The withdrawal would become effective one year after the notification was received, it said.