South Africa threatens to leave ICC over Bashir scandal

Why didn't South Africa arrest Sudan's president?

25 June

The failure of the South African government to arrest Sudanese president Omar al-Bashir was unconstitutional, according to the country's High Court.

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The ruling was delivered in Pretoria seconds before the government confirmed that al-Bashir had already fled the country in his private jet, in defiance of a previous court order.

South Africa has come under increasing pressure to arrest the leader, who is wanted for crimes against humanity, with human rights groups condemning the government's failure to hand him over to the International Criminal Court.

"South Africa has shamefully flouted the ICC and a domestic court to free a man wanted for mass murder of Africans," said Kenneth Roth, the director of Human Rights Watch.

What happened?

Bashir was welcomed by South African officials as he landed in Johannesburg this weekend to attend the annual African Union summit, despite growing calls for him to be arrested. In 2009, he was indicted on charges of war crimes, genocide and crimes against humanity for his role in the conflict in Darfur which killed over 300,000 people. South African human rights lawyer Allan Wallis argued that he should have been welcomed with "handcuffs, not a red carpet."

Ahead of the summit, the ICC issued a strongly worded statement calling on South Africa and other member states to fulfil their obligations to the court by executing the arrest warrant for Bashir.

While the South African government argued that heads of state have immunity while attending the African Union meeting, the Southern African Litigation Centre brought an application to the local courts to compel authorities to arrest Bashir. An interim order was issued, preventing him from leaving the country before the final ruling had been made. But before its contents were announced in the High Court on Monday afternoon, Bashir left a military airbase near Pretoria on a private jet.

Why was he allowed to leave?

The State Security department has promised to investigate how al-Bashir was allowed to leave the country, despite the interim court order. Many commentators have pointed out that it would have been impossible for Bashir and his entourage to leave the country's busiest military airbase without being escorted by government officials.

The troubled relationship between African countries and the ICC may have contributed to the government's reluctance to hand over the president. Leaders accuse the court of being biased against Africa, and the AU has adopted a policy of not cooperating with the ICC. Al-Bashir appears to have left the country "with the blessing of the African Union" reports the BBC's Nomsa Maseko.

What will happen next?

Al-Bashir is expected touch down in Khartoum later today, leaving behind a diplomatic mess in Pretoria, where the South African government stands accused of flouting international and domestic law. As a member of the International Criminal Court, South Africa is legally obliged to hand over anyone charged by the court and ensure they face justice and allowing him to leave is an "affront to the principle of legality and a show of complete disregard for those seeking justice," writes Wallis in the Daily Maverick.

The South African Home Affairs department could now be held in contempt of court for failing to implement the order, but Maseko argues that it is "unlikely" the government will face any sanctions for allowing Bashir to leave the country.