Should South Africa have arrested President Bashir?

Twitter lit up on Sunday and #Bashir was trending worldwide.  As the African Union summit convened in South Africa, the fate of Sudan’s President Omar al-Bashir seemed to hang on a pending decision from a South African judge and the question was: Will South Africa arrest President Bashir and hand him over to the International Criminal Court?

Six years ago, the ICC issued a warrant for the arrest of Bashir for genocide, war crimes, and crimes against humanity allegedly committed in Darfur. He has so far avoided arrest by carefully selecting the dozen countries that he has visited since he became an “ICC fugitive.” Human rights organizations have followed scrupulously Bashir’s travel schedule and each time, have campaigned vigorously for his arrest.

Credited with having one of the most independent judicial systems on the continent, South Africa was poised to be the stage for a dramatic – if not theatrical — legal showcase. As soon as Bashir landed, the Southern Africa Litigation Centre introduced before the Pretoria’s High Court a request to issue a warrant for the arrest of Bashir on Sunday. The court issued an interim order that Bashir must not be allowed to leave the country until a final decision be made on the application on Monday morning. After 24 hours of conflicting reports regarding Bashir’s whereabouts, it is now clear that he has left South Africa, pre-empting the Pretoria High Court ruling.

This in itself is a huge development and will have many political implications. But to be sure, even if the court had decided that the South African security forces must arrest Bashir, putting handcuffs on the Sudan’s president may have only been wishful thinking. For one, Bashir could take refuge in Sudan’s embassy in Pretoria, and South Africa would not be able to go in and arrest him. Such an instance would have resulted in the Assange scenario, and it is not sure whether the Zuma administration wants that.

Moreover, it may well be that South Africa’s domestic laws provide for the arrest of Bashir, but it is still not clear whether South Africa is obligated by international law to arrest Bashir. As crazy as it may sound, Bashir may still have head of state immunity. There are certainly opposing sides on this debate among international law scholars.

Because the ICC prosecutes “the most serious crimes of concern to the international community”, the Rome Statute, which is its founding treaty, doesn’t allow for immunity. It means that by ratifying the Satute and joining the Court, states signs away the immunity of their officials. But Sudan hasn’t done so. The ICC gained jurisdiction over the Darfur crisis through a UN Security Council resolution. The question becomes then whether a mere UNSC resolution can strip a head of state from his/her immunity? Those who argue that the UNSC resolution overrides Sudan’s non-party to the ICC status often invoke the case of Charles Taylor to make their point. But Dov Jacobs here and here argues that nothing under international law obligates South Africa to arrest Bashir.

To be sure, anything related to the ICC is as much about law as it is about politics, despite the denegation of the purists. Why else would the UNSC have the power to refer situations to the ICC, including in states that have opted not joined the Court? Is there any international body more political than the UNSC?

Why then should we fault South Africa for taking into consideration political calculations in deciding whether to arrest Bashir or let him sneak out of the country? Had South Africa arrested Bashir, that would have sent shockwaves throughout the African Union that may well have been fatal to the organization’s survival. As South Africa is one of the powerhouses of the organization (and keeping in mind the African Union’s official position is that its member states should not cooperate with the ICC to arrest Bashir,) one may also wonder what could South Africa gain from arresting Bashir?

This may well be Bashir’s last trip outside of Sudan, as it’s getting hot out there for an ICC fugitive. For the ICC, this dramatic showdown is certainly a positive outcome that points to its increased legitimacy and relevance. The question remains to be seen whether the African Union will still stand behind Bashir, or quietly withdraw its support.

Oumar Ba

Oumar Ba, originally from Senegal, is a contributing editor at Africa is a Country and a doctoral candidate in Political Science at the University of Florida.

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