South Africa High Court Says Allowing Bashir to Leave Violated Constitution

South Africa High Court Says Allowing Bashir to Leave Violated Constitution

Norimitsu Omishi, The New York Times

15 June 2015

JOHANNESBURG — Shielded by the authorities, President Omar Hassan al-Bashir of Sudan flew out of South Africa on Monday morning aboard his presidential jet, just hours before a South African court ruled that the government was legally required to arrest him.

Mr. Bashir’s plane left a South African military airport near Pretoria, the capital, unhindered by the South African authorities who had already been ordered over the weekend by South Africa’s High Court to prevent him from departing.

Though South Africa is a member of theInternational Criminal Court, its government defied the longstanding arrest warrant for Mr. Bashir, who once again eluded international prosecutors seeking to try him on charges of war crimes, crimes against humanity and genocide related to the conflict in the Darfur region of Sudan.

His departure dealt a serious blow to the international court’s six-year campaign to bring him to justice. Mr. Bashir’s plane took off just as South Africa’s High Court was holding a hearing on whether the government was required to comply with the international court, which is based in The Hague.

Lawyers continued to argue their case even after the Sudanese government made the proceedings moot by confirming that Mr. Bashir had left South Africa, a surreal scene that underscored the limits of the international court’s reach.

“The government’s failure to arrest Bashir is inconsistent with the Constitution,” Judge Dunstan Mlambo of South Africa’s High Court said on Monday afternoon.

But by then, Mr. Bashir, who had been in South Africa to attend an African Union meeting with other African leaders, was already halfway to Khartoum, Sudan’s capital.

Judge Mlambo said the government violated the South African High Court’s order to bar Mr. Bashir from leaving the country. The judge instructed the government to explain the circumstances behind Mr. Bashir’s departure.

After Mr. Bashir’s plane landed in Khartoum on Monday, he mounted the back of a pickup truck dressed in traditional white Sudanese clothing, waving his trademark walking stick.

Thousands of supporters greeted him with patriotic and traditional songs, carrying flags, placards, banners and even a makeshift coffin with the words “laying the International Criminal Court to its final resting place” written on its side.

“The International Criminal Court has been totally destroyed in Africa,” Sudan’s foreign minister, Ibrahim Ghandour, said at a news conference at the airport.

The case strikes at the heart of a global dispute over the international court. Since its creation in 2002, all of the court’s investigations have focused on Africa. But it lacks a police force to enforce its rulings and must rely on diplomatic pressure and the cooperation of members to ensure that its rulings or indictments are enforced.

African politicians have long said that the court unfairly targets African leaders and nations, arguing that it overlooks crimes committed in other parts the world. The court’s supporters point out that most of the cases it has pursued were brought by African governments themselves.

The African Union, which represents the continent’s governments, has campaigned heavily against the court, contending that no sitting head of state should be prosecuted. Other African nations, including Kenya and Nigeria, have allowed Mr. Bashir to visit and leave.

In the six years since Mr. Bashir was indicted, his trip to South Africa was perhaps the closest he had come to being arrested.

Mr. Bashir arrived late on Saturday, but cut his visit short, leaving half a day before the end of the summit meeting.

William Mokhari, a lawyer for the South African government, argued in the High Court that Mr. Bashir enjoyed immunity like the other African heads of state attending the summit here. Mr. Mokhari said that the decision by the government to grant immunity to the visiting heads of state trumped its obligations to the international court.

The Southern Africa Litigation Center, a local human rights group that sought Mr. Bashir’s arrest in the High Court, said that South Africa was bound by international and national laws to detain Mr. Bashir.

South Africa’s governing party, the African National Congress, said in a statement over the weekend that the International Criminal Court was not “useful” to prosecute crimes against humanity because membership is voluntary.

The Case Agaist Omar Al-Bashir

In 2009, Mr. Bashir and three other senior Sudanese officials were indicted on charges of war crimes and crimes against humanity in Darfur.

The following year he was also charged with three counts of genocide.

The Arab-dominated Sudanese government is accused of trying to exterminate the Fur, Masalit and Zaghawa ethnic groups.

The court said Mr. Bashir should stand trial over the “essential role” he is accused of playing in the murder, rape, torture and displacement of large numbers of civilians.

After driving civilians off their land and killing many of them, militias would rape and impregnate women who took refuge in camps, prosecutors said.

The 2009 warrant for Mr. Bashir was the first in which the court, established in 2002, sought the arrest of a sitting head of state.

Legal experts counter that the South African government has violated the 1998 Rome Treaty it signed to join the court. In addition, they say that the government has violated its laws because South Africa has incorporated the treaty’s principles into its own Constitution.

“Even though it’s understandable the government needs to maintain diplomatic relations with African countries, the point remains that in our country the Constitution is supreme — the government has to act according to the Constitution,” said Johan Kruger, the director of the Center for Constitutional Rights.

“What is even more concerning is that South Africa tries to argue immunity for crimes against humanity,” he added. “Regardless of who the leader may be or what the diplomatic considerations may be, we’re talking about heinous crimes committed under the auspices of President Bashir. Given our own history and our own Constitutional premise, to argue for immunity for those kinds of crimes is unthinkable.”

Under President Jacob Zuma, South Africa, which was initially a staunch supporter of the court, has moved closer in recent years to the African Union and its stance against the International Criminal Court, experts say. Critics have long asserted that the African Union is an organization whose principal objective is to protect African leaders instead of the rights of its citizens.

The organization, currently led by Robert Mugabe, Zimbabwe’s authoritarian 91-year-old president, did little to shed that image during this summit.

“The African Union has always been a presidential brotherhood; the members always look out after each other,” said John Akokpari, an expert on the African Union at the University of Cape Town. “Their rhetoric about respecting human rights and the rule of law has always been rhetorical diarrhea.”

Under Mr. Zuma, South Africa has shown little leadership on the continent in recent years, some analysts say. South Africa’s position on Mr. Bashir will further erode its standing on the continent, they argued.

“It is unfortunate that a country that once gave so much hope to the continent, that the continent looked up to, is now doing this sort of thing,” Mr. Akokpari said. “Africa is now lacking direction. If we had South Africa coming to the support of the I.C.C., many of these atrocities we see happening in Africa might not happen.”

____