A South African court’s consideration of a civil society request for the arrest of Sudanese President Omar Al-Bashir has demonstrated that it is no longer business as usual for fugitives from international justice.
With Al-Bashir in South Africa to attend an African Union (AU) summit, the South African Litigation Center filed a motion in Pretoria’s high court to compel the execution of two ICC arrest warrants for the Sudanese president. The court ordered Al-Bashir to remain in the country pending a ruling on the matter, but he fled before a decision on the arrest motion was issued.
William R. Pace, convenor of the Coalition for the ICC:
“With governments too often unwilling to act on arrest warrants for Al-Bashir and others sought by the ICC, actions by civil society are increasingly important to ensure state cooperation with the Court, as are independent judiciaries like in South Africa. Al-Bashir’s hasty departure from South Africa shows that legal action can have a real impact. The ICC’s governing body and the UN Security Council must take whatever steps necessary to ensure that the next time Al-Bashir leaves Sudan, he is ultimately brought before the Court.”
The Court’s governing body, the Assembly of States Parties (ASP), can refer acts of non-cooperation to the UN Security Council, which can then take further action.
As a party to the Rome Statute, the founding treaty of the ICC, South Africa was obligated to arrest Al-Bashir, who is wanted for war crimes, crimes against humanity and genocide allegedly committed in Darfur, Sudan.
The South African government said that Al-Bashir had immunity because he was attending an AU summit as a head of state. However, the UN Security Council, in its 31 March 2005 Resolution 1593 referring the situation in Darfur to the ICC, implicitly waived any immunity for Al-Bashir. This follows the Rome Statute’s core principle that explicitly precludes immunity regardless of government office. The AU Charter also contains significant anti-impunity measures.
An AU proposal to give criminal jurisdiction to the African Court of Human Rights includes an article giving immunity to sitting heads of state and senior government officials, but has yet to be ratified. A total of 34 African states have ratified the Rome Statute.
“The assertion made by some African rulers that heads of state have immunity from prosecution flies in the face of the Rome Statute and the AU Charter, which preclude any immunity for war crimes, crimes against humanity and genocide. The court ruling ordering Al-Bashir’s arrest, the mere consideration of which prompted him to flee the country, is a firm affirmation of that principle.”
South Africa was reminded of its obligations in an urgent decision issued by ICC Judge Cuno Tarfusser on 13 June. Judge Tarfusser explicitly stated that no other decisions, including those made by the AU, could be invoked to grant immunity to Al-Bashir. ASP President Sidiki Kaba also reminded South Africa of its obligations in a public statement prior to his arrival in the country.
Netsanet Belay, Amnesty International’s research and advocacy director for Africa:
“South Africa’s role was clear from the day president Omar Al-Bashir touched down in the country – he should have been arrested and handed over to the ICC to face trial for the war crimes he is alleged to have committed. By failing to hand President Omar Al-Bashir over to the ICC during his stay in the country, the South African authorities, under the leadership of President Jacob Zuma, have through their inaction, aided Omar Al-Bashir in his quest to avoid justice.
Alison Smith, international criminal justice director for No Peace Without Justice:
“We commend the South African Litigation Centre for bringing this petition. This is really an example of what we as ordinary citizens can do to try to hold our governments to their international commitments. We also commend the South African judicial system: it should not be noteworthy for judges and lawyers to uphold the law, but to do so in the face of almost overwhelming political opposition is a courageous act. We only wish the South African authorities had as much integrity as their countryfolk in the face of this sad state of affairs. If they truly did not want to arrest President al-Bashir, they simply should not have invited him.”
David Tolbert, president of the International Center for Transitional Justice:
“The actions of the South African government have dealt a grave blow to the rights of victims of atrocities in Darfur and to the prospects of establishing a credible system of international criminal justice through the ICC.”
Insitute for Security Studies researcher Allan Ngari:
“South Africa’s refusal to arrest Bashir is a major setback for the ICC, but the court is not about one country. And as events in South Africa show, the ICC may need to rely more on civil society in the absence of cooperation from governments.”
Carla Ferstman, director of REDRESS:
“There are many un-answered questions which should be methodically scrutinised, also to avoid any repeat of such a situation. These include: which South African officials are responsible for the contempt of the South African court ruling, and what response the UN Security Council should take to this presumably flagrant failure to comply with an International Criminal Court order, in a matter stemming from a UN Security Council referral. These are not lofty or rhetorical questions but ones which require careful and transparent responses if the rule of law is to prevail in South Africa and if the cooperation regime underpinning the ICC Statute is worth its salt.”
James Goldston, executive director of the Open Society Justice Initiative:
“This week’s hurried departure by Sudanese President Omar al-Bashir from South Africa, where African Union heads of state were convening, has spared him arrest for now. But the Pretoria High Court order that he defied, which enforced a warrant from the International Criminal Court charging him with genocide and crimes against humanity, marks a step forward in the fight against impunity.”
FIDH, ACJPS and LHR:
“We welcome the court’s decision that serves as a reminder that no one is above the law, and not even Heads of State may benefit from immunities before the ICC. Our organisations, however, condemn the South African government’s continued violation of court orders, which seriously damages and undermines the rule of law. We therefore call on the government to be held accountable for its lack of compliance with its national and international obligations.”
The Nigerian Coalition for the ICC:
“The Nigerian Coalition for the International Criminal Court commends the South African Court in Pretoria for issuing an interim order to prevent Sudanese President Omar Al-Bashir from leaving South Africa until he decides whether to order the government to arrest him on war crimes charges. This action of the High Court Judge is highly commendable and should be emulated by other African Courts.”
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