Sudanese president Bashir wanted: leaves South Africa, despite Pretoria court order

Sudan president Omar al-Bashir, wanted by the International Criminal Court on an arrest warrant for genocide and war-crimes charges in Darfur, jetted out of a South African military airport on Monday in defiance of a court order that banned him from leaving.

Hours after his departure, unaware that he had gone, a Pretoria court ordered Mr. Bashir’s arrest on the international warrant, but a government lawyer immediately announced that Mr. Bashir had left the country.

The court sharply criticized the government for violating the court order and its own constitution, and demanded an explanation within a week. Government lawyer William Mokhari promised that the government would “fully investigate” how exactly Mr. Bashir had been able to leave the country.

The Pretoria court on Sunday had ordered South Africa to prohibit Mr. Bashir from leaving the country until the court had ruled on whether he should be arrested and sent to The Hague for trial by the International Criminal Court. Human rights activists asked the court to order his arrest after he arrived in Johannesburg to attend an African Union summit on Sunday.

Even as court arguments were underway on Monday, local journalists were watching Mr. Bashir’s jet at the Waterkloof air base near Pretoria and reporting on its departure, after a convoy of official vehicles arrived at the base.

To add to the confusion, Mr. Mokhari told the Pretoria court that he wasn’t sure of Mr. Bashir’s whereabouts. Even if he isn’t visible at the AU summit, he could be “in his hotel or doing shopping,” Mr. Mokhari told the court.

He also said Mr. Bashir’s name was not on the official passenger list for the presidential jet. Some analysts said this could be a ruse to allow South Africa to explain why it didn’t enforce the court order banning his departure.

Lawyers for the Southern Africa Litigation Centre, which launched the court action to seek Mr. Bashir’s arrest, said they will demand that the government be found in contempt of court for allowing Mr. Bashir to flee without trying to stop him.

In its ruling on Monday, the court rejected the government’s argument that it can give immunity to African leaders to prevent them from being prosecuted on international warrants when attending summits in South Africa.

Many African leaders have complained that the court is biased against Africans, since it has only prosecuted Africans so far. The African Union has adopted a new policy of refusing to cooperate with the court.

South Africa has been a strong supporter of the International Criminal Court in the past, and it is a signatory to the ICC treaty, so its decision to ignore the arrest warrant is a major setback for the court’s influence in Africa.

“This is a sad day for South Africa and a blow to the rule of law,” said Anton du Plessis, managing director of the Institute for Security Studies, an African think-tank. “Until now, the country has been a champion of international justice and has done more than most in Africa to make sure victims get justice.”

Earlier on Monday, United Nations secretary-general Ban Ki-moon said South Africa must arrest Mr. Bashir to fulfill its obligations to the international court. He said he takes the arrest warrant “extremely seriously.”

Elise Keppler, acting director of international justice at Human Rights Watch, criticized the South African government’s failure to arrest Mr. Bashir and its willingness to allow him to fly out of the country. “By allowing this shameful flight, the South African government has disregarded not only its international obligations, but its own courts,” she said in a statement on Monday.

“When Sudanese president Omar al-Bashir took off from South Africa today, he took with him the hopes of thousands of victims of grave crimes in Darfur who wish at last to see justice done,” she said. “An opportunity was missed, but a clear message has been sent to Bashir that he is not safe from arrest.”

The ruling political party, the African National Congress, asked the South African government to ignore the court order prohibiting Mr. Bashir’s departure. Sudan’s foreign minister Ali Ahmed Karti told local media that Mr. Bashir is “a leading president and a member of the African Union, and he will continue attending summits wherever they are.”

In the past, Mr. Bashir had twice refused to attend events in South Africa, after the government said it would be obliged to arrest him. But this time he apparently felt confident that he would escape prosecution because the AU has adopted a new policy of refusing to accept ICC jurisdiction over its leaders.

Mr. Bashir has previously attended summits at the AU headquarters in Addis Ababa, but the Ethiopian government – unlike South Africa – has not signed the ICC treaty.

South Africa’s ruling party, the ANC, said the African Union’s leaders have “immunity” from arrest at global summits because of “international norms.” Human rights groups, along with the ICC itself, strongly disagreed with this argument and demanded that Mr. Bashir must be immediately arrested.

 “Al-Bashir is a fugitive from justice,” said Amnesty International’s research director for Africa, Netsanet Belay, in a statement on Saturday. “If the government of President Zuma fails to arrest him, it would have done nothing, save to give succor to a leader who is accused of being complicit in the killing, maiming and torture of hundreds of thousands of people in a conflict that has blighted the lives of millions.”

The ICC itself, in a ruling on Saturday at its headquarters in The Hague, said the South African government has a clear obligation to arrest Mr. Bashir immediately and surrender him to the court.

“There exists no ambiguity or uncertainty with respect to the obligation of the Republic of South Africa to immediately arrest and surrender Omar al-Bashir to the Court,” presiding judge Cuno Tarfusser said in his ruling. He said the South African authorities “are already aware of this obligation.”

Mark Kersten, a researcher at the London School of Economics who studies the International Criminal Court, said the South African decision to allow Mr. Bashir to visit the country could set a precedent that allows him to travel freely across Africa.

“It’s clear that this is a rather dark day for the ICC and its relationship with the African Union,” he said. “Not only has a member-state allowed Bashir onto its territory, but that member-state is South Africa, a country which has traditionally been a strong supporter of the Court and which is clearly an influential powerhouse that other African states look to for leadership.”