Court criticised over ‘Al-Bashir’ judgment

In June 2015, Sudan President Omar al-Bashir attended the African Union (AU) Summit hosted in South Africa.

In 2009 and 2010 the International Criminal Court (ICC) issued warrants of arrest for President Al-Bashir following his indictment for crimes against humanity and genocide committed in Darfur, Sudan between 2003 and 2005. Because of South Africa’s accession to the Rome Statute of the International Criminal Court in November 2000, this makes the country a state party to the court.

On 13 June 2015, the evening of President Al-Bashir’s arrival in South Africa, the Southern Africa Litigation Centre made an urgent application to the Gauteng Divison, Pretoria, for the arrest and surrender of President Al-Bashir. The court ordered the South African government to prevent Al-Bashir from leaving the country until the application had been heard. Judge Hans Fabricius ordered the Department of Home Affairs to ensure that all points of entry and exit be informed that President Al-Bashir was not allowed to leave until the conclusion of the application. However, on 15 June President Al-Bashir left South Africa for Sudan while the matter was still being heard in court.

One reason for the court’s decision is that heads of state do not enjoy immunity from Rome Statute crimes. 

The Rome Statute also states that countries are obliged to arrest and surrender a person sought by the ICC. Article 89 of the Rome Statute provides that a state, faced with a request to arrest and surrender a person, ‘shall ... comply with requests for arrest and surrender’. The statute also provides directives for how a state should deal with competing requests for the arrest and surrender of a person, as well as the procedural modalities for giving effect to the obligation to arrest and surrender.

In terms of art 86 of the statute, state parties shall ‘cooperate fully with the court in its investigation and prosecution of crimes within the jurisdiction of the court’. To facilitate the ICC’s prosecution, the government was obliged to arrest President Al-Bashir as soon as he landed in South Africa.

The government has come under immense criticism for disregard for the rule of law for defying the court order. Others have, however, criticised the judiciary for being ‘puppets of international courts’. 

De Rebus spoke to the outreach coordinator for Kenya and Uganda public information and documentation section of the ICC, Maria Kamara, who said the ICC has been following the developments regarding President Al-Bashir’s visit to South Africa closely, and noted with concern that he was not arrested and was allowed, according to reports, to leave the country (before the end of the AU summit) in violation of both South Africa’s obligation under the Rome Statute and the ruling of the South African High Court, which had ordered him to be prevented from leaving South Africa, pending its ruling on the request to arrest him.

Ms Kamara said the ICC also noted that the South African High Court ruled on 15 June 2015 that President Al-Bashir should have been detained pending his surrender to the ICC and that the ICC’s Pre-Trial Chamber made clear in its decision on 13 June, that ‘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, and that the competent authorities in the Republic of South Africa are already aware of this obligation.’

Ms Kamara said nevertheless, South Africa is and remains an important state party to the ICC Rome Statute, and the court looks forward to constructive engagement and strengthened cooperation with it.

‘Following the reports of President Al-Bashir’s return to Sudan without arrest, it is eventually for the ICC’s Pre-Trial Chamber to make a legal determination on whether South Africa has failed to comply with the ICC’s request for cooperation contrary to the provisions of the Rome Statute and whether such a finding should be communicated to the Assembly of States Parties (ASP) and to the United Nations Security Council (UNSC) for the ASP and the UNSC to adopt any measures they deem adequate,’ she said.

When asked how the ICC felt about the perception that the ICC is targeting and ‘bullying’ African countries, Ms Kamara said the ICC’s focus is not on a specific continent, country, party or community. But that its mission is to prosecute the perpetrators of the most serious crimes and to establish justice for the benefit of victims and of future generations.

‘Saying that the ICC is focusing on Africa is focusing on 20 suspects, instead of seeing Africa in the face of thousands and thousands of victims. Of the court’s ongoing nine investigations, five were referred to the ICC by the concerned African states parties themselves (Uganda, Democratic Republic of the Congo, the Central African Republic I and II, and Mali) recognising the inability to address the crimes at stake and two were referred by the United Nations Security Council (Darfur and Libya) where African states are represented,’ she said.

Ms Kamara said in addition, Côte d’Ivoire had voluntarily accepted the jurisdiction of the ICC, giving the prosecutor the possibility to open an investigation. Ms Kamara added that in Kenya, it was the political scene that prevented the Kenyan authorities from self-referring the post-elections violence to the ICC, so the ICC prosecutor opened an investigation, with the Chamber’s authorisation, but only after thorough discussions with the Kenyan authorities.
Ms Kamara said preliminary examinations on other continents, including in Afghanistan, Georgia, Guinea, Palestine, Iraq, Colombia, Honduras and Korea were also currently being conducted by the Office of the Prosecutor at the ICC.  

‘The court has always benefited from the professional experience of Africans. Four out of the 18 current judges of the court are African. A number of Africans occupy high-level positions at the court, such as the positions of first vice-president and the ICC prosecutor. The court would not exist without the strong support of African states and civil society who were actively involved in the court’s establishment. Thirty-four African states have now ratified the Rome Statute, making Africa the most represented region in the court’s membership’, she said.

The matter is currently ongoing as the government has shown interest in appealing the decision. 

•	To read a full analyses on the whole saga in an article by University of Pretoria law professor, Dire Tladi, who is also special adviser to International Relations Minister Maite Nkoana-Mashabane, titled ‘The duty on South Africa to arrest and surrender Al-Bashir under South African and international law: Attempting to make a collage from an incoherent framework’ go to www.derebus.org.za
•	See LSSA news ‘Profession stands behind Chief Justice and judiciary in raising concern on attacks on the judiciary and rule of law’ in this issue.