On 3 July 2009 a meeting of African heads of state at the Assembly of the African Union (AU) decided to withhold cooperation from the International Criminal Court (ICC) in respect of the arrest and surrender of President Omar al-Bashir of The Sudan. President al-Bashir has been indicted by the ICC for war crimes and crimes against humanity allegedly committed in Darfur. The decision by the AU represents the most serious challenge to the struggle against impunity and lawlessness on the African continent.

South Africa's President and Foreign Minister were present at meetings of the AU Assembly on 2 and 3 July 2009 when this decision was debated and approved. Neither the President nor the Foreign Minister is reported to have raised any objections to the decision. South Africa's endorsement of the declaration requires it to break its international treaty obligations and to defy its own law and Constitution.

South Africa played a pioneering role in the establishment of the ICC and was one of the first countries to ratify the Court's enabling statute, the Rome Statute, and incorporate it into domestic law (The Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002). That statute passed by Parliament requires South Africa to execute the ICC's warrant of arrest should President al-Bashir enter South African territory. Our Constitution is equally clear on the obligations of the state. Where an international agreement or treaty has been enacted into law by national legislation it is binding law.

As a State Party to the Rome Statute, South Africa is obliged to fully cooperate with the ICC in the arrest and transfer of President al-Bashir to the ICC, whether or not it agrees with the indictment. South Africa's endorsement of the AU decision suggests that it is not to be trusted with its international treaty obligations. Should the South African government persist with its support for the decision it will do so in open defiance of its own Constitution and law.

In past years South Africa has stood as a beacon of hope and inspiration to oppressed peoples around the world struggling for freedom and justice. Of all nations, we were expected to side with victims of mass murder, rape, mutilation and torture; not with their tyrants and persecutors. Not so long ago South Africa protected the military junta in Burma from sanction; today we are seen to be siding with those accused of terrorizing the civilian population of Darfur. Who will it be tomorrow?

The undersigned civil society organisations and individuals call upon President Jacob Zuma and the South African government to:

• state unequivocally that South Africa will honour its treaty obligations under the Rome Statute to cooperate fully with the ICC;
• respect and abide by the South African Constitution and the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002;
• stand up for all oppressed peoples and human rights victims wherever they might be.