Two human rights organisations - International Center for Transitional Justice (ICTJ) and Amnesty International have condemned South Africa over its recent failure to arrest Sudanese President Omar al-Bashir in line with a court order.
President Omar al-Bashir
The ICTJ which works to redress and prevent the most severe violations of human rights by confronting legacies of mass abuse, noted that "the South African government allowed al-Bashir's departure, in blatant breach of its obligations under the Rome Statute of the International Criminal Court (ICC). There is now no immediate possibility of al-Bashir’s arrest and transfer to the ICC to face charges of war crimes, crimes against humanity and genocide.
“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,” David Tolbert, President of the International Center for Transitional Justice, said.
The action was consistent with the established tone of the African Union’s claims that the ICC is persecuting African states.
These claims ignore the fact that Uganda, the Democratic Republic of Congo, the Central African Republic, and Mali all referred the situations in their own countries to the ICC. Two different Ivorian governments confirmed the recognition of the ICC’s jurisdiction to enable it to investigate crimes alleged to have occurred in Cote d’Ivoire. The UN Security Council referred the situations of Darfur and Libya – the latter with a unanimous vote of all 15 members of the UN Security Council. Of the eight ICC situation countries, only Kenya is subject of an investigation as a result of the ICC Prosecutor’s own initiative.
While there is no doubt that the African Union has been successful in rallying leaders of African states to decry the ICC as an instrument of neo-colonialism, the fact remains that the court has acted almost exclusively on the request of different African states themselves or the UN Security Council.
The position of the African Union, and today the decision by the South African government, present the single biggest threat to the decades-long struggle to respect the victims of human rights abuses.
“Whatever the criticisms of the efficiency and impact of the ICC, the African Union runs the risk of establishing itself as the single most effective ‘Impunity Club’ in the world, using sham arguments to screen high-level suspects and obstruct the pursuit of justice,” Tolbert added. “It is sad that South Africa, so long seen as a global example in progress towards peace through measures of truth, justice and dignity, should undermine the cause of justice for so many victims.”
Amnesty International described the "South African government's shocking failure to heed to its own court order and arrest Sudanese President Omar Bashir as a betrayal to the hundreds of thousands of victims who were killed during the Darfur conflict."
The North Gauteng High Court ruled that the South African government’s failure to detain President Omar al-Bashir was inconsistent with the Constitution and that the government should have arrested him upon his arrival in the country pending a formal request from the ICC.
He was allowed to leave despite an interim order that he be prevented from departing.
“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,” said Netsanet Belay, Amnesty International’s Research and Advocacy Director for Africa.
“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. "It is completely unacceptable and shocking for South Africa, as a member of the ICC, to ignore its international obligations in this way and allow impunity free rein. Not only has it undermined the country’s commitment to the ICC, it has ridden roughshod over the rights and hopes for justice of all those people who were killed and displaced during the war in Darfur.”
President Omar Al-Bashir attended the 25th African Union Summit in South Africa between 13 June 2015 and 15 June 2015. As a member of the ICC, South Africa had an obligation to arrest President Omar Al-Bashir and hand him over to the ICC.
President Omar Al-Bashir has two warrants of arrest against him issued by the International Criminal Court in 2009 and 2010 respectively. He is facing seven counts of war crimes and crimes against humanity as well as three counts of genocide.
Omar Al-Bashir is accused of committing war crimes and crimes against humanity in the conflict in Darfur, Sudan, which has claimed more than 400,000 lives and displaced more than two million others. The conflict started in 2003 and it continues to claim more lives.
The ICC has issued cooperation requests to all States Parties to the Rome Statute, including South Africa, for the arrest and surrender to the Court of Omar Al Bashir.