Al Bashir narrowly escapes arrest in South Africa

The High Court rules against the government: Omar Al Bashir should have been arrested under international law, and his invitation to the AU summit is inconsistent with the constitution. “It had an obligation to arrest him,” say the ICC and the UN chief.

President Omar Al Bashir has left South Africa hours before he would have been arrested on an international arrest warrant. The South African High Court in Pretoria just now ordered that the South African government arrests Sudan's President Omar Al Bashir.

According to the High Court on Monday afternoon, the government of South Africa has granted immunity to president Omar Al Bashir by inviting him for the African Union summit in Johannesburg, a move against the national constitution. It was informed about the Sudanese president's escape from the country at the start of the court hearing.

Al Bashir's departure through the military airbase of Waterkloof is a violation of a court order on Sunday, that barred the president from leaving the country until the application had been heard, the chairman of the court read in his verdict this afternoon. Judge Dunstan Mlambo: “It is declared by the court that conduct by respondents [the government] that they have failed to arrest Al Bashir, is inconsistent with the constitution of South Africa.”

The judge had ordered the government to take “reasonable steps to arrest Bashir” and hand him over to the International Criminal Court. The court in Pretoria agreed with applicants that South Africa has obligations under international and domestic law to arrest him.

The government of South Africa thus ignored the court order. If Al Bashir would have stayed, the Sudanese president would have been arrested and potentially handed over to the International Criminal Court in The Hague. This court has charged him for committing war crimes and genocide, among others, in Darfur.

ICC, UN chief disappointed

The International Criminal Court's chief deputy prosecutor James Stewart told AFP on Monday that South Africa's failure to arrest Al Bashir was "disappointing": "…disappointed that he was not arrested. Our position has always been that South Africa's obligation is clear and unequivocal. It had an obligation to arrest him," James Stewart told AFP, according to Times Live.

On Monday, the United Nations Secretary-General Ban Ki-moon added his voice to the international condemnation of South African government’s failure to act, saying that signatories to the ICC’s Rome Statute must carry out the warrant for Al Bashir’s arrest. "The International Criminal Court's warrant for the arrest of President Al Bashir on charges of crimes against humanity and war crimes is a matter I take extremely seriously," he said in Geneva.

The government of South Africa has kept silent during the entire day. It did not comment on the escape by the Sudanese president, but through its lawyer said that it will invesitgate the circumstances of the departure.

Worldwide discussion

The escape of president Al Bashir from South Africa to Khartoum with speculated support of the South African government has sparked worldwide discussion on the ICC. The presiding judge at the Pretoria High Court said: “It is of concern to us that an order of the court that was issued, and that was clear, that was to ensure the presence of President Bashir in this court until the finalisation of proceedings, has not been complied with – one way or another.”

The judge then issued an order that the government provide an explanation to the court within seven days, disclosing the place where Al Bashir left the country, and the precise time that he had left.

Lawyers for the prosecuting human rights law organisation Southern Africa Litigation Centre (SALC) have said that they want the court to find government officials guilty of contempt for violating court orders.