Southern Africa Litigation Centre
Southern Africa Litigation Centre

Do we have a duty to arrest Omar al-Bashir and hand him to the ICC?

By Kaajal Ramjathan-Keogh

These will be some of the deliberations at the Supreme Court of Appeal hearing tomorrow in the state’s appeal of the June 2015 high court order to arrest Sudanese President Omar al-Bashir. Will this court arrive at a different conclusion in respect of the arrest of al-Bashir?

The state certainly hopes so. But will this serve the interests of justice?

The principle issue before the Supreme Court of Appeal (SCA) in this case is whether al-Bashir was immune from arrest in South Africa for surrender to the International Criminal Court (ICC). In order to ascertain this the court will have to evaluate whether he holds immunity as a sitting head of state and whether this immunity protects him from arrest and surrender to the ICC.

To recap the proceedings before the high court in June 2015, the Southern Africa Litigation Centre made an urgent application to the high court for an order compelling the government to arrest al-Bashir. The state opposed the application. The court issued successive orders requiring the government to ensure that al-Bashir did not leave the country pending the determination of its application. Despite repeated assurances that al-Bashir was still in the country and would not be allowed to leave, the high court was informed at the time it made its final order on June 15 2015 that al-Bashir had left.

Judge President Dunstan Mlambo in delivering the high court’s decision made the following statement: “A democratic state based on the rule of law cannot exist or function, if the government ignores its constitutional obligations and fails to abide by court orders. A court is the guardian of justice, the corner-stone of a democratic system based on the rule of law. If the state, an organ of state or state official does not abide by court orders, the democratic edifice will crumble stone-by-stone until it collapses and chaos ensues.”

Sudan's President Omar al-Bashir attends the African Union Peace and Security Council in Addis Ababa on January 29, 2016. (Tony Karumba / AFP)

Sudan’s President Omar al-Bashir attends the African Union Peace and Security Council in Addis Ababa on January 29, 2016. (Tony Karumba / AFP)

The high court bench comprising judges Mlambo, Hans Fabricius and Aubrey Ledwaba asked these telling questions after handing down their unanimous ruling:

* How could al-Bashir and his entourage travel from Sandton to Waterkloof without the government’s knowledge? (Particularly as he was being accompanied by a government security detail.)
* How could the plane take off without the government knowing if he was on board?
* How could plane Sudan 01 arrive in Sudan that afternoon if it hadn’t left by noon that same day?

These and other questions remain unanswered. The state has made no attempt to provide any explanation and in the absence of a real explanation we can assume that there is no explanation — only defiance.

President al-Bashir stands accused of the international crimes of genocide, war crimes and crimes against humanity. The state contends that as a head of state his immunity is inviolable. This situation is untenable and to allow immunity at national level to defeat arrest and surrender to the ICC is to prevent and obstruct the ICC from doing its job.

There is a compelling amicus application by the African Centre for Justice and Peace Studies and the International Refugee Rights Initiative, which seek to bring before the courts the voices of the victims in the Sudanese situation. Lawyers for Human Rights is representing these well-respected Sudanese victims’ organisations. Both have been consistently monitoring and reporting on human rights abuses in Sudan. The amicus application seeks permission to place new evidence before the SCA. Generally parties are not permitted to adduce new evidence at an appeal stage, and it will be up to the court to weigh up the importance and significance of this evidence in deciding whether to admit it.

The submission deals with the international law rights of victims (of human rights violations) to be able to access effective remedies. The submission provides evidence of the international crimes of genocide, war crimes and crimes against humanity which al-Bashir and his regime stand accused of. The submission details how al-Bashir and his regime:

* Continue to wage war against sections of its civilian population despite al-Bashir and senior government officials having been indicted by the ICC for these abuses.
* Commit crimes against civilians including the looting and destruction of property, extra-judicial killings, mass rape and torture.
* Maintain power by brutally suppressing those who oppose or protest against it, including opposition party members, journalists, protestors and human rights activists.

The submission conclusions are that the real hope for victims of Sudan is for al-Bashir and members of the Sudanese government who have been indicted by the ICC to be arrested and surrendered to the ICC by a third state.

President Jacob Zuma announced at an African Union summit in Addis Ababa, Ethiopia, earlier this year that South Africa will consider leaving the ICC. He stated, “Our strongly held view is that it is now impossible, under the circumstances, for South Africa to continue its participation in the Rome Statute”. While we can anticipate a mass walk out by African countries from the ICC this case continues to grow in importance.

The SCA ruling will be decisive and will confirm the position for South Africa and other third countries who are members of the ICC in terms of their obligations and responsibilities over war criminals. But if South Africa leaves the ICC — all bets are off and war criminals are welcome here.

Kaajal Ramjathan-Keogh is the executive director of the Southern Africa Litigation Centre.

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    • RodB

      No one dragged SA to join the ICC. No one forced SA to sign documents agreeing to abide by the rules of the ICC.

      If you willingly sign a contract, you are bound by the terms of that contract, whether you like it or not. You do not, without the prior agreement of the other parties to the contract, decide unilaterally which parts of it you will abide by, and which you will ignore.

      To do so means your word means absolutely nothing and you have no honour or integrity.

      The SA government proved that in this case.

    • Isabella vd Westhuizen

      Well judging by Zuma’s past skilful and learned reflection on law and the constitution and the opinion of real experts that these were manifestly incorrect I suspect our dear leader may be in for yet another body blow here.

    • conrad

      Does anyone in this world know where al-Bashir is? Is there anyone out there who does not know where to go find him if they should want to arrest him??? Everybody knows including the fake icc. The whole world simply wants south africa to do its dirty jobs.