A Step Back for South Africa on the Rule of Law, Courtesy of Al-Bashir

06/19/2015 10:51 am ET | Updated Jun 19, 2016

This past week the South African government showed utter disregard for its international legal obligations and rule of law when it reportedly assisted the escape from its territory of Sudanese President Omar Al-Bashir, who is also wanted by the International Criminal Court (ICC) for war crimes, crimes against humanity and genocide in Darfur.

Al-Bashir was attending the 25th African Union Summit in Johannesburg when the Southern African Litigation Centre (SALC) submitted an urgent application following the ICC's order that he be arrested upon landing in the country in light of the 2009 and 2010 arrest warrants issued against him. It was then when Judge Hans Fabricius, from the Pretoria High Court, issued an interim order preventing the Sudanese President from leaving South Africa, pending a decision of the court. The Judge even ordered that the Department of Home Affairs ensure that all points of entry and exit be informed that Al-Bashir would not be allowed to leave until the application by SALC was concluded: "In my view it is clear when an investigation under the ICC Act is requested, and a reasonable basis exists for doing an investigation, political considerations or diplomatic initiatives are not relevant", he said. The Judge's view is in line with what the ICC made clear, that is, that diplomatic immunity does not apply to heads of state, and goes against the SA Government's request last Friday for an exemption from its obligations to arrest Al-Bashir on the grounds that he enjoys immunity from prosecution as he was attending an AU Summit.

This SA Government's position was also categorically rejected last Saturday in an order issued by one ICC Judge, Cuno Tarfusser, who maintained that "there is no ambiguity in the law and that the Republic of South Africa is under the obligation to arrest and surrender to the Court Omar Al-Bashir". Lastly, several media outlets reported that South Africa's Ambassador to The Netherlands Bruce Koloane had been told over the weekend that "the immunities granted to Omar Al-Bashir under international law and attached to his position as Head of State have been implicitly waived by the United Nations Security Council (UNSC) by resolution 1593 (2005) referring the situation in Darfur, Sudan, to the Prosecutor of the Court and that the Republic of South Africa cannot invoke any other decisions, including that of the African Union, providing for any obligation to the contrary."

While this was all taking place during what was a very active weekend for international criminal law practitioners and diplomats, key actors in the field issued statements that made their positions on the matter very clear. These included the UN Secretary-General Ban Ki-moon, who said that "The ICC warrant for the arrest of Bashir must be implemented by countries who have signed up to The Hague Court's statute"; and the UN High Commissioner for Human Rights Zeid, who said that "The member states must show this leadership too. It is of deep concern to me, and my Office, when court orders are issued by the ICC in respect of the serving head of state of Sudan, and State Parties to the Rome Statute openly flout them." Leading NGOs such as Human Rights Watch also expressed concern for what was occurring and issued media statements calling on Al-Bashir's arrest and for SA's commitment to the rule of law to not be broken. Last but not least, the ICC Prosecutor Fatou Bensouda expressed: "I am looking forward to President Bashir to be arrested and sent to the ICC. This is the correct thing to do. This is the legal thing to do."

However, and unfortunately, while the local High Court was hearing the legal arguments over the SALC application to force the SA authorities to arrest Al-Bashir, his plane took off from a military base. And it is safe to assume that he simply would not have been able to do so without assistance and enabling by the SA authorities. This needs to be investigated and if this assumption proves right, then it is clear that there was contempt of a court order and that serious explanations will need to be given by the proper authorities to the Judge. In fact, the court has since demanded an explanation of why the Sudanese president was allowed to leave the territory, and the government has said that it intends to comply with this order within a week. What could happen in addition to this, at the international level, is that the ICC issues a non-compliance notice for South Africa and transmits it to the UNSC reinstating that full cooperation with the ICC is a prerequisite for the Court's effective functioning. But similar complaints in the past have largely been ignored and have had very little impact.

And so the lack of action on the part of the SA Government is bad in itself for what it means in terms of implications for its rule of law, respect for judicial institutions and the credibility of the Government in the eyes of its people who can no longer have faith in the basic principle that no one is above the law. But it is not just a disappointment over how SA handled the matter. Rather, it is the lack of responsible action that directly affects the thousands of victims of the Darfur conflict who, when they had a possibility at seeing Al-Bashir face justice in The Hague, they saw that chance evaporate in mere hours. And SA, having itself dealt with the horror of a legacy of human rights abuses and apartheid, could and should have done better.

The lack of enforcement of the arrest warrants against Al-Bashir is indeed disappointing but the existence of the domestic court order is a welcome development in the context of the fight against impunity. Aside from setting an important precedent, Al-Bashir had to leave suddenly expanding his almost-ban to travel abroad fearing arrest and/or further embarrassment. One also wonders what he would face if he were to return to South Africa in the future.

And so what happened in Johannesburg this past week did not weaken the ICC in my view; on the contrary, it put Bashir, an alleged war criminal, on the spotlight again. And the strong condemnation that South Africa received for its actions, most surprisingly perhaps from African countries, could be interpreted as well as support for the Court in its battle to finally hear Bashir's case after his transfer to The Hague. The ICC did not lose credibility, South Africa did.