South Africa Flubs its Chance at Justice for Bashir

Suspected war criminals scored a victory Monday as Sudanese President Omar al-Bashir defied a South African judge’s order and fled the country back to Khartoum. Despite two outstanding arrest warrants from the International Criminal Court (ICC), Bashir landed in Johannesburg on Saturday to attend the African Union (AU) Summit. In the past, Bashir declined to attend events in South Africa after its government said that it would be obliged to arrest him on charges of crimes against humanity, war crimes, and genocide related to the conflict in Darfur. This time, Bashir appears to have felt protected after the South African government recognized an agreement with the AU granting leaders and delegates attending such meetings immunity. However, the latest incident illustrates the ongoing tensions within ICC member states between their international obligations and their own legal frameworks. 

Testing the waters, the Southern African Litigation Centre (SALC) filed an application with Pretoria’s High Court to force authorities to arrest Bashir under South Africa’s obligations to the ICC. The ICC first indicted the Sudanese president in 2009 for seven counts of crimes against humanity and war crimes. The following year, the court issued an additional arrest warrant for three counts of genocide. With Bashir’s arrival in Johannesburg, the President of the Assembly of the ICC called on South Africa to respect its international obligations as a signatory to the court’s founding Rome Statute and “spare no effort” to execute the arrest warrants.

In response, the ruling African National Congress (ANC) charged that the ICC is “no longer useful” as “a court of last resort for the prosecution of crimes against humanity.” Referring directly to the case against Bashir, the ANC statement noted that the case highlights “the fundamental flaws” of the ICC and called on the government to “challenge” the court’s order of detention.

In the matter of the SALC against the state, Judge Hans Fabricius ordered South African authorities on Sunday to prevent the Sudanese president from leaving the country pending a hearing Monday morning to determine whether South Africa should arrest the only current world leader under ICC indictment. However, as the court convened, Bashir’s location was unknown, with reports of his escape circulating. While the court proceeded under the “assumption” that he was still in the country, it ruled that the government’s actions, or lack thereof, were “inconsistent with the Constitution,” and the government “must take steps to detain him, pending a formal request from the ICC.” Additionally, as it became apparent that Bashir had skipped town, the court asked for an inquiry into how he had exited the country.

With Bashir’s hasty departure, a real opportunity for justice may have been missed. It is unlikely, after all, that Bashir will make the mistake of nearly walking into the arms of the ICC again. In South Africa—and perhaps within the AU leadership—a larger question of the triangular relationship between the state, its judicial system and the ICC has emerged. Clearly, the issue is a complex one for each state. However, ignoring such issues and allowing a suspected genocidaire to go free does justice for no one.

Laura Grossman is deputy director for research at Foundation for Defense of Democracies. Follow her on Twitter @Lhgrossman