Government should have detained al-Bashir, South African high court rules

The court's ruling means that anyone facing similar charges won’t be able to set foot in South Africa without being arrested.

Shiraaz Mohamed/AP/File
Sudanese President Omar al-Bashir attends the opening session of the AU summit in the South African city of Johannesburg. South Africa’s Supreme Court of Appeal on Tuesday, dismissed an appeal by the country’s government against a ruling that South African officials should have arrested Sudan’s president when he was in the country last year.

The South African Supreme court has upheld a high court decision issued last year, ruling that the government should have arrested Sudan’s president Omar al-Bashir.

Pretoria is obligated to issue warrants of arrests for leaders and others facing criminal charges at the International Criminal Court (ICC), the Supreme Court said.

The South African government failed to arrest Mr. al-Bashir during his visit, forcing the high court to issue an emergency order for his arrest, but al-Bashir exited the country before the order was issued. Invoking diplomatic immunity as a serving head of state, the government asked the Supreme Court of Appeal (SCA) to overturn the ruling, but the court called the failure to arrest the Sudanese president “unlawful” and “inconsistent” with the country’s obligation, as a signatory of the ICC, Deutsche Welle reports.

Al-Bashir's exit without arrest drew widespread international criticism. Several rights groups including the Southern Africa Litigation Centre condemned the move, saying that immunity isn’t applicable to people facing charges of crimes against humanity.

“We need to be vigilant to ensure that South Africa does not become a safe haven for suspected perpetrators of egregious crimes,” said Kaajal Ramjathan-Keogh, the Executive Director of the Southern Africa Litigation Centre said in a statement, according to Bloomberg. “The South African government should seek to uphold the rule of law instead of shielding suspected war criminals.”

Al-Bashir, 72, is accused of orchestrating the genocide in Darfur that left at least 300,000 dead, and displaced 2 million others. He is facing seven counts of war crimes and crimes against humanity, as well as three counts of genocide, at the ICC.

The ruling means that anyone facing similar charges won’t be able to set foot in South Africa without getting arrested.

But the government has been pushing to withdraw from the ICC saying that the court has “lost its direction.”

“In the eyes of the African leaders, the ICC is biased,” South African President Jacob Zuma said in a speech in Johannesburg, according to the Guardian. “Only Africans they are interested in. This is what has made Africa feel we need to relook at our participation. It looks like it is just meant for us.”

Zuma’s sentiments towards the ICC are in line with other ICC critics who accuse the court of targeting only African leaders. In 2013 several members of the African Union threatened to withdraw their ICC participation, in response to charges against Kenyan president Uhuru Kenyatta. The charges were later dropped due to lack of evidence, the International Business Times reports.

But analysts, including major critics of the court, refute the widespread claims that ICC unfairly targets African leaders, saying that while the court may have its downfalls, it does offer an alternative to local justice systems that have failed to prosecute leaders that have been implicated in mass atrocities.

“This complaint is valid – if it means that it is unfair that other world leaders, such as former US president George W. Bush, Al-Assad and Israeli Prime Minister Benjamin Netanyahu, go free while Al-Bashir is charged,” writes John Dugard, Professor of Law University of Pretoria and Professor Emeritus, University of Leiden, on the AllAfrica Blog. "But it is not valid if it means that dictators with blood on their hands are above the law and should not be held accountable.”

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