photo by jon nicholson

news - South African Court Rejects Impunity: “Decision Not to Arrest Bashir Inconsistent with Law”

march 17th, 2016

Earlier this week, South Africa’s Supreme Court of Appeal (SCA) rejected the government’s appeal of a lower court decision over its failure to arrest suspected international criminal and Sudan President Omar al-Bashir. Bashirtraveledto South Africa last June to attend an African Union (AU) summit. The lower courtheld that the government violated South African law by allowing Bashir to leave the country before a court could rule on whether South African officials should arrest him due to his two outstanding International Criminal Court (ICC) arrest warrants.

South Africa is a signatory to the Rome Statute and has a legal obligation to serve ICC arrest warrants to individuals within its jurisdiction. Moreover, in 2002, South Africa passed legislation that incorporates these obligations into domestic law, removing any doubt as to whether the government has a duty to serve these warrants.

To sidestep these legal obligations, the South African government issued a notice in the government gazette days before the AU summit, granting diplomatic immunity to all summit delegates. The SCA dismissed this argument, finding instead that “The decision by the South African government not [to] arrest Al-Bashir was inconsistent with South African law.” Further, it stated that the government’s conduct allowing Bashir to leave the country was “disgraceful.”

South Africa’s decision not to arrest Bashir and extradite him to The Hague is lamentable. Bashir has flouted his arrest warrants previously and in this instance, he tempted fate and only narrowly escaped arrest. Nonetheless, the SCA’s ruling is an important moment in the struggle to end impunity. As Kaajal Ramjathan-Keogh, Executive Director of the South Africa Litigation Centre stated after the court’s ruling, “South Africa should not be treated as a safe haven for suspected perpetrators of egregious crimes.” In addition, senior government officials—and their lawyers—may face criminal charges for contempt of court proceedings after misleading the North Gauteng High Court in Pretoria last summer. These officials should face criminal charges for their role in facilitating Bashir’s evasion of justice. As one South African newspaper stated, “the ruling raises the question of which officials, or government ministers, were responsible for breaking the law and what sanctions they will face. There is no question that legal action against them should be pursued and we trust the government will make sure that happens.”

The ruling also restates South Africa’s commit to international justice and the rule of law, rather than the current government’s shielding of a suspected war criminal and its abuse of executive power. As one commentator said, “What is crucial is that the court’s ruling makes clear that those charged with crimes such as genocide are not welcome in [South Africa], and should be arrested if they dare visit.” South Africa was the first African state to sign the Rome Statute and for years has been at the forefront of strengthening human rights, advancing democracy, and upholding the rule of law. This ruling is a key step in South Africareturningto this forefront.

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