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As government backtracks on Bashir, civil society takes action
15 June 2015

Pretoria, South Africa – The South African government was legally obliged to arrest Sudanese President Omar al-Bashir, who arrived in South Africa on 13 June to attend the African Union (AU) summit in Johannesburg, and is reported to have already left the country.

Bashir is wanted by the International Criminal Court (ICC) for various counts of war crimes, crimes against humanity and genocide committed from 2003 in Darfur, Sudan. Despite several obligations under both international and domestic law, South African authorities did not arrest Bashir.

‘This is a sad day for South Africa and a blow to the rule of law,’ says Anton du Plessis, ISS managing director. ‘Until now, the country has been a champion of international justice and has done more than most in Africa to make sure victims get justice.’

ICC Judge Cuno Tarfusser clarified in an urgent public decision on 13 June that ‘… there exists no ambiguity or uncertainty with respect to the obligation of the Republic of South Africa to immediately arrest and surrender Omar Al Bashir to the Court, and that the competent authorities Republic of South Africa are already aware of this obligation.’

The ICC prosecutor had requested the clarification after South Africa’s ambassador to the Netherlands, Bruce Koloane, informed the court of his government’s position that Bashir has immunity as a head of state on official business at the AU Summit.

‘The immunity argument doesn’t hold up,’ says du Plessis. ‘The UN Security Council decision in this case bars immunity to Bashir under international law and in relation to his position as head of state. Plus, South Africa’s own ICC implementation law removes immunity for individuals wanted by the ICC.’

Koloane contended that South Africa’s position was based on a comparison with United Nations (UN) meetings in New York, where foreign leaders have immunity from prosecution in the United States (US) under an immunity agreement between the UN and the US.

‘The ICC prosecutor was right to reject South Africa’s argument outright,’ says du Plessis. ‘This or any other argument about diplomatic immunity does not override South Africa’s national and international legal obligations in relation to Bashir’s arrest.’

On Monday UN Secretary-General Ban Ki-moon added his voice to local and international condemnation of the South African government’s failure to act, saying that signatories to the ICC’s Rome Statute must carry out the warrant for Bashir’s arrest.

As the South African government backtracked on its commitments as a UN member state, a signatory to the ICC’s Rome Statute, and the requirements of its own law – the International Criminal Court Act of 2002 – civil society and the judiciary have stepped into the breach.

On 14 June the Southern African Litigation Centre brought an urgent application in the high court to compel the South African government to arrest Bashir. An interim order was granted preventing Bashir from leaving the country while the court decided on the matter.

Bashir’s reported departure earlier today directly contravenes the court’s interim order, and is another indication of the South African authorities’ apparent lack of regard for the rule of law.

‘It is likely that the National Prosecuting Authority sought to have a red notice issued to the police before Bashir arrived,’ says ISS researcher, Allan Ngari. ‘Political pressure prevented his arrest then, and will likely do the same now, even if a court orders that he be arrested.’

Ngari says this is tragic for victims of Bashir’s alleged crimes. The ICC does not have its own police and relies on states to arrest those it indicts. ‘Bashir has evaded arrest for six years; this was South Africa’s chance to help bring justice to a region of Africa that has been decimated by violence.’

South Africa has a long and proud history in the development of international criminal justice. It played a key role in the negotiations and adoption of the ICC’s Rome Statute in 1998. South Africa ratified the Rome Statute early on and is one of only a few African countries to have passed national ICC legislation. Only South Africa and Uganda have specialised units to investigate and prosecute genocide, war crimes and crimes against humanity.

‘The country’s commitment to protecting the victims of international crimes in Africa has, until now, been strong,’ says 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.’

Ultimately these developments may be worse for South Africa than for the ICC. ‘Criminal justice, good governance and the rule of law in the country have been systematically eroded in recent years,’ says du Plessis. ‘We shouldn't be surprised that this now extends to the international level.’

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