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Omar al-Bashir of Sudan Leaves South Africa, Avoiding Arrest South Africa High Court Says Allowing Bashir to Leave Violated Constitution
(about 4 hours later)
JOHANNESBURG — President Omar Hassan al-Bashir of Sudan, who faced arrest on international charges of crimes against humanity and genocide, slipped out of South Africa on Monday morning, dealing a serious blow to the International Criminal Court’s six-year campaign to bring him to justice. JOHANNESBURG — Shielded by the authorities, President Omar Hassan al-Bashir of Sudan flew out of South Africa on Monday morning aboard his presidential jet, just hours before a South African court ruled that the government was legally required to arrest him.
Mr. Bashir’s private jet was seen flying out of a South African military airport near Pretoria, apparently unhindered by the South African authorities who had been ordered by their country’s High Court to prevent him from departing. Mr. Bashir’s plane left a South African military airport near Pretoria, the capital, unhindered by the South African authorities who had already been ordered over the weekend by South Africa’s High Court to prevent him from departing.
A lawyer for the South African government confirmed on Monday afternoon that Mr. Bashir had left, and Sudan’s minister for information told reporters that Mr. Bashir was aboard the plane and was expected back in Khartoum, the Sudanese capital, on Monday evening. Sudanese officials had given conflicting information about his whereabouts during his two-day visit here, claiming at one point on Sunday that he had already left South Africa. Though South Africa is a member of the International Criminal Court, its government defied the longstanding arrest warrant for Mr. Bashir, who once again eluded international prosecutors seeking to try him on charges of war crimes, crimes against humanity and genocide related to the conflict in the Darfur region of Sudan.
A South African High Court on Sunday issued an order calling for the authorities to prevent Mr. Bashir from leaving the country because of the charges against him at the International Criminal Court. His departure dealt a serious blow to the international court’s six-year campaign to bring him to justice. Mr. Bashir’s plane took off just as South Africa’s High Court was holding a hearing on whether the government was required to comply with the international court, which is based in The Hague.
On Monday, after receiving confirmation of Mr. Bashir’s departure, the high court said that the government had violated its order — and South Africa’s Constitution — by failing to arrest Mr. Bashir. The judge ordered the government to explain the circumstances behind Mr. Bashir’s departure. Lawyers continued to argue their case even after the Sudanese government made the proceedings moot by confirming that Mr. Bashir had left South Africa, a surreal scene that underscored the limits of the international court’s reach.
The case has pitted the International Criminal Court against the South African government, which had argued that heads of state had immunity while attending the African Union meeting. It is also being watched as a test of the reach of the criminal court, which lacks a police force to enforce its rulings and must rely on diplomatic pressure and the cooperation of nations to ensure that its rulings or indictments are enforced. “The government’s failure to arrest Bashir is inconsistent with the Constitution,” Judge Dunstan Mlambo of South Africa’s High Court said on Monday afternoon.
On Monday, the United Nations secretary general, Ban Ki-moon, added his voice to the debate, saying that the International Criminal Court’s warrant must be respected by countries that have agreed to its statutes. But by then, Mr. Bashir, who had been in South Africa to attend an African Union meeting with other African leaders, was already halfway to Khartoum, Sudan’s capital.
“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,” he said in Geneva, according to news agencies. Judge Mlambo said the government violated the South African High Court’s order to bar Mr. Bashir from leaving the country. The judge instructed the government to explain the circumstances behind Mr. Bashir’s departure.
In the face of recalcitrance by member states to cooperate and Sudan’s failure to extradite Mr. Bashir, the international court asked the United Nations Security Council in March to help it enforce the arrest warrant for Mr. Bashir. The Sudanese government has been the subject of a criminal investigation by the court for its actions during the conflict in Darfur, which has led to the deaths of hundreds of thousands of people and the displacement of millions. After Mr. Bashir’s plane landed in Khartoum on Monday, he mounted the back of a pickup truck dressed in traditional white Sudanese clothing, waving his trademark walking stick.
In 2009, Mr. Bashir and three other senior officials were indicted on charges of war crimes and crimes against humanity. In 2010, the international court also charged Mr. Bashir with three counts of genocide. Thousands of supporters greeted him with patriotic and traditional songs, carrying flags, placards, banners and even a makeshift coffin with the words “laying the International Criminal Court to its final resting place” written on its side.
However, the court, in The Hague, has struggled to carry out the indictment in the face of resistance, not just from Sudan, but also from African governments, which argue that the court has unfairly and disproportionately targeted leaders from Africa. “The International Criminal Court has been totally destroyed in Africa,” Sudan’s foreign minister, Ibrahim Ghandour, said at a news conference at the airport.
The case strikes at the heart of a global dispute over the international court. Since its creation in 2002, all of the court’s investigations have focused on Africa. But it lacks a police force to enforce its rulings and must rely on diplomatic pressure and the cooperation of members to ensure that its rulings or indictments are enforced.
African politicians have long said that the court unfairly targets African leaders and nations, arguing that it overlooks crimes committed in other parts the world. The court’s supporters point out that most of the cases it has pursued were brought by African governments themselves.
The African Union, which represents the continent’s governments, has campaigned heavily against the court, contending that no sitting head of state should be prosecuted. Other African nations, including Kenya and Nigeria, have allowed Mr. Bashir to visit and leave.
In the six years since Mr. Bashir was indicted, his trip to South Africa was perhaps the closest he had come to being arrested.
Mr. Bashir arrived late on Saturday, but cut his visit short, leaving half a day before the end of the summit meeting.
William Mokhari, a lawyer for the South African government, argued in the High Court that Mr. Bashir enjoyed immunity like the other African heads of state attending the summit here. Mr. Mokhari said that the decision by the government to grant immunity to the visiting heads of state trumped its obligations to the international court.
The Southern Africa Litigation Center, a local human rights group that sought Mr. Bashir’s arrest in the High Court, said that South Africa was bound by international and national laws to detain Mr. Bashir.
South Africa’s governing party, the African National Congress, said in a statement over the weekend that the International Criminal Court was not “useful” to prosecute crimes against humanity because membership is voluntary.
Legal experts counter that the South African government has violated the 1998 Rome Treaty it signed to join the court. In addition, they say that the government has violated its laws because South Africa has incorporated the treaty’s principles into its own Constitution.
“Even though it’s understandable the government needs to maintain diplomatic relations with African countries, the point remains that in our country the Constitution is supreme — the government has to act according to the Constitution,” said Johan Kruger, the director of the Center for Constitutional Rights.
“What is even more concerning is that South Africa tries to argue immunity for crimes against humanity,” he added. “Regardless of who the leader may be or what the diplomatic considerations may be, we’re talking about heinous crimes committed under the auspices of President Bashir. Given our own history and our own Constitutional premise, to argue for immunity for those kinds of crimes is unthinkable.”
Under President Jacob Zuma, South Africa, which was initially a staunch supporter of the court, has moved closer in recent years to the African Union and its stance against the International Criminal Court, experts say. Critics have long asserted that the African Union is an organization whose principal objective is to protect African leaders instead of the rights of its citizens.
The organization, currently led by Robert Mugabe, Zimbabwe’s authoritarian 91-year-old president, did little to shed that image during this summit.
“The African Union has always been a presidential brotherhood; the members always look out after each other,” said John Akokpari, an expert on the African Union at the University of Cape Town. “Their rhetoric about respecting human rights and the rule of law has always been rhetorical diarrhea.”
Under Mr. Zuma, South Africa has shown little leadership on the continent in recent years, some analysts say. South Africa’s position on Mr. Bashir will further erode its standing on the continent, they argued.
“It is unfortunate that a country that once gave so much hope to the continent, that the continent looked up to, is now doing this sort of thing,” Mr. Akokpari said. “Africa is now lacking direction. If we had South Africa coming to the support of the I.C.C., many of these atrocities we see happening in Africa might not happen.”