Sudanese President Omar Hassan Ahmed Bashir’s jet took off into Pretoria’s sunny winter skies Monday, spiriting him away from a looming arrest warrant and leaving behind a trail of questions about South Africa’s respect for international law and its own courts.
In allowing Bashir to flee, the South African government was contravening its own High Court, which issued an order Sunday barring his departure. On Monday, the court went further, issuing a warrant for Bashir’s arrest on charges of genocide and crimes against humanity. But by then, he was in the air, on his way home after attending an African Union summit in Johannesburg.
He stepped off his plane in Khartoum, the Sudanese capital, several hours later and raised a stick in the air as several hundred supporters greeted him, the Associated Press reported.
Bashir was indicted by the International Criminal Court in 2009 and 2010. He is accused of war crimes in the Darfur conflict, in which 300,000 people died.
The chief judge of South Africa’s High Court, Dunstan Mlambo, said South African authorities had violated the constitution by letting Bashir go, and demanded an explanation from government lawyer William Mokhari.
Earlier, as the media buzzed with reports that Bashir had flown out of South Africa, Mokhari told the court that Bashir’s name wasn’t on a list of those who left the country. After the court ordered Bashir’s arrest, Mokhari acknowledged that he had been told by the government that Bashir had departed.
Critics said South Africa’s reputation as a nation supportive of international justice and human rights has been shattered. Questions were raised about the government’s respect for international law and the courts.
“South Africa was one of the countries that was considered to be very much for international justice,” said Ottilia Maunganidze of the Pretoria-based Institute for Security Studies. “This just flies in the face of what we had been led to believe. It also speaks [to] South Africa’s aspirations in the U.N., in terms of whether it can be regarded as consistent in its actions, or whether it is a country that can be trusted, when push comes to shove.”
Others questioned whether the government had intentionally misled the court, and whether it had been playing for time since Sunday to allow Bashir to get out of the country before a court ordered his arrest. On Sunday, government lawyers told the court they needed time to prepare their case in response to an application from a legal and human rights group, the Southern Africa Litigation Center, to force Bashir’s arrest. At that point, the hearing was adjourned to Monday.
South Africa previously warned that it would arrest Bashir if he visited the country. But before the African Union summit, it declared that all leaders attending the meeting were being granted legal immunity.
The nation’s refusal to arrest Bashir was a major setback for the International Criminal Court, which appeared to have lost one of its most important backers in Africa.
The incident underscores the growing opposition in Africa to the court. Critics complain that the ICC, which is based in The Hague, has mainly focused on prosecutions in Africa (although the majority of such prosecutions were referred to the court by African governments). There is anger that the United States and some other countries refuse to submit to the court’s jurisdiction, yet expect African nations to do so.
Still, Patrick Smith, editor of the analytical journal Africa Confidential, said that although South Africa’s position has changed, the court still has plenty of support in Africa from those who had witnessed abuses in Sudan, Congo, Kenya and other countries.
“I think that these farcical developments, with Omar al-Bashir putting in cameo appearances and then having to flee like a fugitive, don’t do the court an awful lot of harm,” he said. However, he added, “Why does South Africa remain a member of the court if it is not prepared to abide by its treaty obligations?”
South Africa’s governing African National Congress, which has a proud history of fighting for human rights and freeing the nation from apartheid, said in a statement Sunday that the ICC was “no longer useful for the purposes which it was intended.”
In a sign of how sharply South Africa’s position has changed, the government information service tweeted Monday that “no kangaroo court shall ever disturb our political, government and human rights order.” The tweet was swiftly deleted.
Elise Keppler, an analyst on international justice with Human Rights Watch, said South Africa’s decision was “deeply disappointing.”
“They really blew a chance to show leadership,” she said. “It’s a huge stain on South Africa’s international standing. It completely disregarded the ICC directive for him to be arrested and it flouted its own domestic [court] orders. It raises real questions about what is going on in South Africa right now.”
The ICC has not been able to arrest Bashir in the six years since he was first indicted because it relies on member states to carry out its arrest warrants. Bashir has visited Chad, Ethiopia, Kenya and Djibouti in the past.
He had to depart Nigeria sooner than planned in 2013, after a local human rights group took action to force his arrest. In 2012, the African Union moved its summit to Ethiopia, after Malawi’s government blocked his attendance.
The African Union voted in 2013 to protect sitting heads from ICC prosecution after the court’s indictment of Bashir and Kenyan President Uhuru Kenyatta. The ICC has since dropped its case against Kenyatta, citing the Kenyan government’s refusal to cooperate with its investigation.
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