South Africa’s Supreme Court of Appeal on Tuesday ruled that the government “acted unlawfully” by allowing South Sudanese President Omar al-Bashir to leave the country during an African Union summit in 2015 despite an International Criminal Court (ICC) warrant for Bashir’s arrest, BusinessStandard reported.
Bashir denies ICC charges of genocide, war crimes and crimes against humanity in Darfur, South Sudan.
The Southern Africa Litigation Centre filed an urgent application for Bashir’s arrest in court when he visited South Africa in June, ENCA reported.
Reports differ over whether Bashir left before the court handed down its decision, or after.
South Africa’s largest radio station, JacarandaFM reported that Bashir was allowed to leave South Africa from the Waterkloof Airforce Base hours after the High Court in Pretoria ruled that he should be arrested.
ENCA reported that Bashir was allowed to leave before the North Gauteng High Court gave its verdict.
Either way, the fact that he was allowed to leave caused an international uproar that overshadowed the African Union’s meeting discussions.
As a signatory to the Rome Statute, South Africa was legally obliged to detain Bashir in the country and ensure his extradition to the Hague, ENCA reported.
By failing to arrest Bashir in accordance with ICC, the South African government acted against its own laws as a member of the Rome Statute, the Supreme Court of Appeals said, according to JacarandaFM.
Al Bashir is still wanted by the ICC for war crimes, genocide and crimes against humanity committed in Darfur in Sudan.
The South African government appealed the ruling, arguing in February in the Supreme Court of Appeal that Bashir was protected against arrest by diplomatic immunity as a sitting head of state.
South Africa had no obligation to arrest him, the government said. Six days before Bashir arrived, all delegates to the summit were promised diplomatic immunity, the government said.
Southern Africa Litigation Centre argued that it could not be in the interest of justice to grant diplomatic immunity to someone wanted for war crimes and crimes against humanity, and that the that genocide was ongoing in Sudan’s Darfur region.
The ICC has 123 member countries as of May, 2015, including almost half of the African countries, almost all European and Oceania countries, and South American countries, according to Graphic.
Since its 2002 inception, the ICC has carried out investigations concerning nine countries including eight in Africa, prompting criticism by the African Union that it unfairly targets African countries and leaders.
Investigations by the ICC have been done in the following African countries: Kenya, Cote D’Ivoire, Sudan, Libya, Democratic Republic of Congo, Central African Republic, Uganda and Mali.
People of African origin that have been charged by the ICC include Joseph Koni, a Ugandan rebel leader; President Omar al-Bashir of Sudan; President Uhuru Kenyatta of Kenya and his Vice-President, William Ruto; former Libyan leader, Muammar Gaddafi and former Cote D’Ivoire President, Laurent Gbagbo.
At a two-day African Union conference in January, 2016, member countries approved a proposal by Kenya for Africa to quit the ICC.
The theme for the January summit was “protecting human rights.”
So far, the Sudan has pulled out of the ICC and some African countries, including Kenya, South Africa and Uganda, say they plan to quit.