The ICC has said it is disappointed by South Africa for not arresting Sudan's President Omar al-Bashir. A judge in Pretoria has issued an arrest warrant saying failure to apprehend Bashir had violated the country's law.
While the South African court was passing its judgment there was some confusion over President Bashir's whereabouts. Local media reported seeing his aircraft take off from a military base, but a lawyer for the South African government said the sighting of al-Bashir's plane was not "conclusive proof" that the Sudanese president himself was on board and had left the country.
However, Sudan's Minister for Information Yasser Youssef told Reuters, al-Bashir had left Johannesburg and his plane was expected to land in the Sudanese capital Khartoum on Monday evening.
While making his ruling on Monday, South African Judge Dunstan Mlambo said the conduct of the respondents to the extent that they have failed to take steps to arrest and detain the President of Sudan Omar al-Bashir "is inconsistent with the constitution of the Republic of South Africa." Judge Mlambo later issued an arrest warrant on Sudan's fugitive leader.
Mlambo's ruling came after another judge had instructed South African authorities on Sunday to prevent al-Bashir from leaving the country.
The court was to decide whether the wanted fugitive leader should be handed over to the International Criminal Court. The appeal to have al-Bashir arrested was launched by a legal rights group, the Southern African Litigation Center.
The indictments by the ICC on President al-Bashir relate to the volatile region of Darfur. With a population of nearly six million and area the size of France, Darfur erupted into conflict in 2003 when black insurgents launched a campaign against al-Bashir's Arab-dominated government.
The Darfuris have long complained of marginalization by the central government. In response, Khartoum unleashed a counter-insurgency using the armed forces and allied militia known as janjaweed, or "devils on horseback".
According to the UN, 300,000 people have been killed in the conflict and another 2.5 million forced to flee their homes.
South Africa's obligation
Human rights activists say South Africa as a signatory to the Rome Statute which established the ICC, is under an obligation to arrest al-Bashir and hand him over to the court.
The UN Secretary General Ban Ki-moon had also called on Pretoria to abide by its international commitments. "The International Criminal Court's warrant for the arrest of President al-Bashir on charges of crimes against humanity and war crimes is a matter I take extremely seriously," the top UN official said.
The South African government however challenged the application to have the Sudanese leader arrested. Spokesman for the department of justice said on Monday they would "meticulously argue for the application to be dismissed."
Sudanese officials also said President al-Bashir had been assured by the South African government that he would be welcomed during his visit.
It is understood that South Africa's Minister of International Affairs Maite Nkoana-Mashabane, was party to an agreement granting diplomatic immunity to delegates participating in the African Union summit. The conference which attracted leaders from the entire continent ended on Monday in Johannesburg.
David Hoile, Director of the Africa Research Center said the African Union grants immunity to sitting presidents from arrest. "South Africa voted for the unanimous AU resolutions which called on AU states not to cooperate with the ICC," Hoile said. "The government of South Africa is bound legally first and foremost by its obligations to the AU as a member state," he told DW.
The chairperson of the South African parliament's international relations committee, Siphosezwe Masango, voiced support for al- Bashir saying the court applications was "an opportunistic act only meant to pit African leaders against each other."
Al-Bashir warrant overshadows AU summit
The call by the ICC on South Africa to detain and extradite al-Bashir to The Hague overshadowed the African Union summit which was the reason for al-Bashir's visit to Johannesburg.
The summit was chaired by Zimbabwean President Robert Mugabe who in his opening remarks called on the nations of Africa to bring peace and security to the continent. Without peace, Africa's economic agenda would not succeed.
The prevailing instability and insecurity "clearly demonstrates the urgent need to fully operationalize the African standby force. This will be an important step towards the goal of silencing the guns by 2020," the 91- year-old Zimbabwean leader said.
ICC chief prosecutor Fatou Bensounda warned she could report South Africa to the UN Security Council
Nkosazana Dlamini Zuma, chairperson of the AU Commission, praised Africa for its response to the recent Ebola epidemic in the west of the continent. But she expressed concern over growing levels of poverty, unemployment, and strife, saying these were reasons why thousands of African migrants were willing to risk their lives crossing the Mediterranean in search of greener pastures in Europe.
"If we educate and skill our people, with an emphasis on science, engineering, technology and math, our people will stop undertaking the perilous journey," she said.
South African President Jacob Zuma also sounded a note of optimism at the summit saying that Africa was on "a new path to development and growth that will enable it to take its rightful place in global affairs."