South Africa Will Not Arrest Sudan’s Omar Al Bashir
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The Supreme Court of Appeal said on Tuesday that the South African government was under an obligation to co-operate with the ICC in arresting Sudanese President Omar Al Bashir.
The court dismissed the State’s appeal against a high court ruling that government’s failure to arrest Al Bashir was inconsistent with its constitutional duties.
The SCA said that Al Bashir’s case was of substantial public importance, and further said it was unlawful for the government to allow him to leave the country.
South Africa is a signatory to the International Criminal Court (ICC’s) Rome Statute, which sets out the crimes falling within the ICC’s jurisdiction and the procedures and the mechanisms for states to co-operate with the court.
When Al Bashir entered South Africa last June for an African Union summit, the SA Litigation Centre (SALC) approached the high court for an order that government enforce an ICC arrest warrant on him.
On June 15, the High Court in Pretoria ordered the government to arrest Al Bashir and said its failure to do so would be unconstitutional. Despite this, he was allowed to leave the country.
However the unanimous judgment was clear on Tuesday; if today, President Al Bashir landed in terms of the provision [of the Rome Statute], he would have to be arrested.
“It is correct that no present effect can be given to the order that the government take steps to prepare to arrest President Bashir, because he is not in South Africa.
“But the order remains in existence and SALC indicated that any attempt by President Bashir to return to this country would prompt it to seek its enforcement.”
It also added that when President Jacob Zuma was inaugurated and an invitation was extended to Al Bashir to attend the inauguration, Sudan enquired whether he would be liable to arrest if he attended, and the answer was in the affirmative.
The SCA added that when South Africa receives invitations to host future gatherings of AU heads of state, government would have to bear the judgment of the high court in mind.
The ICC had two outstanding warrants for Al Bashir, issued in 2009 and 2010. It wants him to stand trial on allegations of crimes against humanity, genocide and war crimes committed in Sudan’s western province of Darfur.
