Sudanese President Omar al-Bashir is the only sitting head of state wanted for genocide, war crimes, and crimes against humanity for his crimes in Darfur.
The South African government has said it will appeal against a court ruling that it acted unlawfully in allowing Sudanese President Omar al-Bashir to leave the country despite an arrest warrant from the International Criminal Court (ICC).
The appeal comes as reports say African countries have agreed to collectively leave the Rome Statute. Although the African Union’s Open ended Committee of Ministers of Foreign Affairs on the International Criminal Court is yet to comment publicly, that decision is said to have been reached on Monday.Last month the Supreme Court of Appeal accused the South African government of ‘disgraceful conduct” over incident and ruled that the failure to arrest Bashir was unlawful. The justice ministry said it would take the case to the country’s highest legal authority, the Constitutional Court.
The “government believes that the interpretation of legislation relating to immunity granted to a foreign sitting head of state needs pronouncement by the Constitutional Court,” the ministry said.
The decision by South Africa not to arrest Bashir sparked international condemnation, which was met with a threat from Pretoria to withdraw from the ICC.
The Sudanese leader has evaded arrest since his indictment in 2009 for alleged crimes in the Darfur conflict in which 300,000 people were killed and two million forced to flee their
When Bashir entered South Africa last June for an African Union summit, the SA Litigation Centre approached the high court for an order that government enforce an International Criminal Court (ICC) arrest warrant on him. On June 15, the High Court in Pretoria ordered the government to arrest Bashir and said its failure to do so would be unconstitutional. Despite this, he was allowed to leave the country.
South Africa is a signatory to the 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.
The ICC had two outstanding warrants for 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. Despite the standing warrants, Bashir has made 74 times to 21 countries. Bashir made his most recent trip abroad on Feb. 20, for the African Investment Forum (AIF) in Egypt. His first visit this year was to Indonesia to attend the Organisation of Islamic Cooperation summit in Jakarta.
It was largely assumed that he would not be attending the meeting held early in the month. A previous invitation for the 2014 Summit was cancelled following protests by local and international activists. He left immediately after bilateral talks with Indonesian President President Joko Widodo in the wake of protests that echoed the 2015 ones when the Sudanese President was forced to cancel a similar trip to the Asian country.
African Union countries approach to Bashir warrants
Nations that have signed the Rome Statute, which creates the ICC, are duty-bound to arrest him. So far, Botswana, Malawi, Zambia, Central African Republic and Uganda have previously warned Bashir against entering their territories on pain of arrest.
However, Kenya – a signatory of the Rome Statute — hosted him for the promulgation of the 2010 Constitution but he was forced to leave suddenly when the International Commission of Jurists obtained a local warrant for his arrest and handover to the ICC. A similar visit to Nigeria was cut short by the threat of a local warrant of arrest, including Kenya, but in all occasions he has had to sneak out for fear of being arrested. Last year, Bashir travelled to South Africa, an erstwhile beacon of ICC support on the continent, and sneaked out hurriedly after a court ordered him detained. South Africa is contesting whether or not it was obliged to arrest Bashir when he attended the African Union Heads of State Summit in Johannesburg.
In September 2015, Chinese President Xi Jinping welcomed Bashir, as an ‘old friend’ to a military parade to mark the end of the Second World War.
Since 2011, Bashir’s foreign visits have been confined to the Middle East and Africa since 2011.
Increasingly, Bashir’s visits are placing many countries at the crossroads of conflicting international obligations regarding immunity for a head of state and cooperation with the ICC.
ICC warrants
The Hague-based court issued the warrants against Bashir and two others in 2009 and 2010, for allegedly masterminding genocide, crimes against humanity and war crimes in the Darfur region of Sudan. Over 300,000 people have been killed in Darfur and three million displaced.
Janjaweed militiamen from the predominantly nomadic ‘Arab’ tribes under Bashir’s command, attacked and destroyed villages in western Darfur occupied by ‘African’ farmers, who are darker-skinned. After an outcry over the atrocities committed by the militia, most of its members were absorbed in the Rapid Support Force that has continued to unleash terror against those opposed to Bashir.
Janjaweed, which loosely translates to ‘gunman on a horse’, gained notoriety in 2003 and has been used by Bashir to keep his iron grip on Khartoum.
The UN Security Council had requested then ICC Chief Prosecutor Luis Moreno Ocampo to investigate the killings in Darfur after a global outcry. After three years of investigations, the ICC Prosecutor concluded that there were reasonable grounds to believe that Bashir bore criminal responsibility in relation to 10 counts of genocide, crimes against humanity and war crimes.
“The Prosecution evidence shows that Al Bashir masterminded and implemented a plan to destroy in substantial part the Fur, Masalit and Zaghawa groups, on account of their ethnicity. Members of the three groups, historically influential in Darfur, were challenging the marginalisation of the province; they engaged in a rebellion. Al Bashir failed to defeat the armed movements, so he went after the people. “His motives were largely political. His alibi was a ‘counterinsurgency.’’’ His intent was genocide,” reads part of the charges.
Failure to arrest Bashir has frustrated the ICC Prosecutor, who froze investigations into the Darfur case in 2014, citing the indifference of the UN Security Council towards her repeated demands for international cooperation to hold account Sudanese officials charged with various crimes.
The decision was celebrated by Bashir supporters as ‘a victory against the ICC’ but the secretary general of the IDPs and refugees, Abdallah Adam Abakar, said the decision “to freeze the investigation on Darfur cases was shocking to the aspirations and the desire of the victims to try all the criminals who committed crimes against humanity and genocide”.
Bashir came to power in a coup in 1989 and ruled the largest African country until 2011 when South Sudan seceded through a referendum. The warrants remain in force and have kept him almost prisoner in Sudan.
Developments in the Bashir case
- January-March 2005 – A United Nations report accuses the government and militias of systematic abuses in Darfur, but stops short of calling the violence genocide. The UN Security Council votes to refer those accused of war crimes in Darfur to the International Criminal Court (ICC), based in The Hague.
- February 27, 2007 – Luis Moreno-Ocampo, the ICC chief prosecutor, names two war crimes suspects, Ahmed Haroun and Ali Muhammad Ali Abd-al-Rahman, in Darfur. Sudan says the ICC has no jurisdiction.
- May 2, 2007 – ICC judges issue their first arrest warrants for the suspects. Sudan rejects the warrants.
- July 14, 2008 – Moreno-Ocampo asks judges for an arrest warrant for Omar al-Bashir, the Sudanese president, on crimes of genocide, crimes against humanity and war crimes against the non-Arab ethnic groups in Darfur.
- July 16, 2008 – Arab League says it is concerned at moves to indict al-Bashir. African Union later urges UN Security Council to suspend any indictment.
- November 20, 2008 – ICC chief prosecutor requests arrest warrants for Darfur rebels for the first time, accusing them of storming an African Union camp and killing 12 peacekeepers.
- March 4, 2009 – The ICC issues an arrest warrant for al-Bashir on seven charges of war crimes and crimes against humanity in Darfur, making the Sudanese president the first acting head of state to be indicted. He is also the most senior figure pursued by the court in The Hague since its inception in 2002. The court rules that al-Bashir cannot be prosecuted for genocide, saying Moreno-Ocampo failed to reasonably prove the Sudanese president had genocidal intent. Al-Bashir responds by expelling 13 international aid organisations, accusing them of working with the ICC on the arrest warrant. Three local groups are also shut down.
- July 3, 2009 – Leaders of the African Union say they will no longer co-operate with the ICC and will not arrest and extradite the Sudanese president.
- July 6, 2009 – Moreno-Ocampo appeals the court’s ruling not to prosecute al-Bashir on charges of genocide. He argues that the decision to prosecute al-Bashir for genocide does not depend exclusively on whether it can be proved that the Sudanese head of state had genocidal intentions.
- February 3, 2010 – The ICC’s appeals chamber orders the court to reconsider its decision to omit genocide from al-Bashir’s list of charges, saying the initial ruling had been affected by “an error of law” for setting the threshold of evidence too high. The court’s pre-trial judges will now have to rule again on whether to charge al-Bashir with crimes of genocide.
- In 2013: Extraordinary summit of the African Union resolves to counter the ICC and its global influence through diplomatic channels at the UN Security Council, as well as limit its mandate to try sitting heads of state and senior government officials across Africa.
- In 2014: ICC Prosecutor Fatou Bensouda freezes investigations in Darfur. Heart broken, a group of victims decide to withdraw from the case altogether.
