Sudanese President Omar al-Bashir, accused of war crimes, has left South Africa one step ahead of the law, according to reports reaching The Maravi Post
The media reports say that al-Bashir left the country Monday even as a South African High Court was considering whether to order his arrest following a request from the un-popular ICC.
And a report from Sudan’s state news agency, SUNA, appeared to confirm the president’s departure from South Africa. The agency reported that Sudanese Foreign Minister Ibrahim Ghandour would hold a press conference at the airport Monday evening “following return of the President of the Republic.”
A South African judge had ruled Sunday that al-Bashir had to stay in the country while the issue was decided. The judge also ordered all ports in the country to prevent the Sudanese leader from leaving. But ICC lawyers arguing in court for al-Bashir’s arrest said the ports of entry and exit did not obey the judge’s order.
The Sudanese leader’s plane had been relocated earlier from Tambo International airport to Waterkloof military base. And al-Bashir apparently slipped through the net.
His apparent departure came as the High Court was considering a request by the International Criminal Court to arrest him on charges of war crimes, crimes against humanity and genocide.
He had been in South Africa attending a two-day African Union summit.
The court proceedings began Monday morning, then went into a one-hour adjournment. South African state lawyer William Mokhari said that the best information the government had was that al-Bashir was still in the country.
But Isabel Goodman, a lawyer from Southern Africa Litigation Centre, said ports of entry have not been responsive to the court’s order.
“There remains a very real risk that President Bashir will leave,” she said, urging the judge to hear the matter as quickly as possible.
The judge said that, when the court reconvened, he wanted to be informed of which ports of entry had not complied with the emergency order to block ports of entry and exit. But it was too late, and that issue will now take on even greater importance.
The ICC charges stem from Sudan’s conflict in Darfur.
That conflict began in 2003. The government of Sudan has been accused of repression of Darfur’s non-Ariab population and ethnic cleansing.
The international debate over al-Bashir’s fate had been intensifying Monday, with a United Nations rights organization saying he should be arrested during his visit to South Africa, while a parliamentary committee said he should go free.
In the balance hung the International Criminal Court’s six-year quest to arrest al-Bashir.
African Union Impunity Moves towards ICC
The AU, the main political forum of African states, has been a growing critic of the ICC’s “intervention” in Africa and has passed a number of resolutions on head-of-state immunity since al-Bashir was indicted – many of them to specifically protect him.
In 2009, the AU issued a declaration supporting him, expressing its concern that his indictment could derail the Darfur peace process. This was followed in 2010 with a declaration that it would not co-operate with the ICC to arrest al-Bashir.
The AU doubled down on those moves in 2011 at the start of the ICC case against Kenyan president, Uhuru Kenyatta, and his deputy, Williem Ruto in 2011, declaring immunity for sitting heads of state. This was only compounded by the Kenyan government’s claims that the ICC was being neo-colonial and “targeting Africans”.
In 2014, the AU approved the Malabo Protocol which created an International Criminal Law Section in the African Court to investigate and prosecute international and other crimes, but still allowing immunity for heads of state and senior government ministers.
The position of the AU’s anti-ICC countries is that sitting heads of state should not be brought before the ICC until they have left office. But as demonstrated by recent violence in Burundi and the re-election of al-Bashir, many leaders outstay or extend their constitutional term limits and refuse to leave office unless forced (as was Blaise Compaoré in Burkina Faso).
Another argument these countries make is that sitting heads of state should be immune from ICC arrest warrants in order to carry out their duties at annual meetings and sessions. This broad immunity was rejected by the UK House of Lords in 1999 after the arrest of Augusto Pinochet. The Lords ruled that heads of states, or former ones in this case, could not claim diplomatic immunity for atrocities that went against international law, such as torture and genocide.
