Sudanese President Omar al-Bashir, a man accused of war crimes and genocide, has left South Africa one step ahead of the law.
Al-Bashir left the country Monday just as a South African High Court was considering whether to order his arrest. His departure was confirmed by both the South African and Sudanese governments.
Sudan’s state news agency, SUNA, reported that Sudanese Foreign Minister Ibrahim Ghandour would hold a press conference at the airport Monday evening “following return of the President of the Republic.”
Judge Hans Fabricius had ruled Sunday that al-Bashir had to stay in South Africa while a court considered whether he should be arrested. The judge also ordered all ports in the country to prevent the Sudanese leader from leaving.
But lawyers arguing in court for al-Bashir’s arrest warned, in advance, that the ports of entry and exit were not obeying the judge’s order.
It is unclear in light of the judge’s order what help al-Bashir might have received, and from whom. His plane had been relocated earlier from Tambo International Airport, near Johannesburg, to Waterkloof military base, south of Pretoria.
And sometime after that, the alleged war criminal went to the military base and slipped through the net.
Court proceedings were underway
His departure came as the North Gauteng High Court in Pretoria was considering a request by the International Criminal Court to arrest him on charges of war crimes, crimes against humanity and genocide.
The ICC charges against al-Bashir stem from the conflict in the Darfur region in western Sudan, which began in 2003. The government of Sudan has been accused of repression and ethnic cleansing of Darfur’s non-Arab population.
Al-Bashir had been in South Africa attending a two-day summit of African Union leaders.
Fabricius, the judge, said Sunday that he wanted to determine whether it was legally acceptable for Pretoria to allow al-Bashir to visit South Africa without arresting him — and key in that decision would be determining if the South African Cabinet’s decision not to comply with the ICC demand could trump an international treaty, South Africa’s Mail & Guardian newspaper reported.
The court proceedings began again Monday morning, then went into a one-hour adjournment. South African state lawyer William Mokhari told the court that the best information the government had was that al-Bashir was still in the country.
But Isabel Goodman, a lawyer from Southern Africa Litigation Centre, told the court that the country’s ports of entry and exit were not being responsive to the court’s order.
“There remains a very real risk that President Bashir will leave,” she said, urging the court to hear the matter as quickly as possible.
The judge said that, when the court reconvened, he wanted to be informed of which ports of entry were not complying with the emergency order to block ports.
After al-Bashir’s departure became known, Judge Dunstan Mlambo said it was “of concern to us that an order of this court was not complied with.”
Mlambo said the government must now file an affidavit on how al-Bashir was allowed to leave, when he left and who signed off on it.
U.N. official: South Africa must comply with treaty
Earlier Monday, when al-Bashir’s whereabouts were still unclear, the chairman of South Africa’s Portfolio Committee on International Relations and Cooperation, Siphosezwe Masango, said he was concerned about the Sudanese President’s possible arrest.
“This is an opportunistic act only meant to pit African leaders against each other in the name of international law,” Masango said in a statement. He urged the leaders gathered for the summit to concentrate instead on regional trade, xenophobia, and the development of Africa’s infrastructure.
He said the ICC appeared to target African leaders and, if the trend continued, his committee might have to recommend that the government re-examine South Africa’s membership in the international court.
But the U.N.’s high commissioner for human rights, Zeid Ra’ad Al Hussein, warned that member states had to follow ICC rules.
“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,” he said Monday at a meeting of the Human Rights Council in Geneva, Switzerland.
The Rome Statute was a treaty that established the International Criminal Court.
“In this regard, we await the ruling of the Pretoria High Court this morning, as it assesses the request submitted by the ICC,” he said.
Sidiki Kaba, the Senegalese justice minister who serves as president of the assembly of states parties to the Rome Statute, expressed his “deep concern about the negative consequences for the court in case of nonexecution of the warrants by States Parties and, in this regard, urges them to respect their obligations to cooperate with the Court.”
South Africa, Kaba said in a statement, should “spare no effort” to arrest al-Bashir.
South Africa had twice before threatened to arrest al-Bashir — in 2009 before President Jacob Zuma’s inauguration and in 2010 before the World Cup, according to the Southern Africa Litigation Centre. He attended neither event, according to news reports.
Devastation in Darfur
Arrest warrants from 2009 and 2010 outline the case against al-Bashir and allege that during the Darfur conflict he ordered the military, police and Janjaweed militia to attack three ethnic groups deemed sympathetic to rebel outfits with “the specific intent to destroy in part” those groups.
As part of that campaign, the warrants say, the Sudanese president ordered the rape, murder and torture of civilians and the razing of villages.
The U.N. has estimated that as many as 300,000 people have been killed in the Darfur conflict since 2003, a tally the Sudanese government says is inflated. Another 7 million are in need of humanitarian assistance, the U.N. High Commissioner for Refugees estimates.
Last week, the U.N. assistant secretary-general for peacekeeping operations told the Security Council that the ongoing violence in Darfur was having a “devastating” impact on civilians. More than 78,000 civilians have been displaced this year alone, the U.N. reports.