Sudanese President Omar Al-Bashir flew out of South Africa on Monday, defying a court order for him to stay, as judges weighed up whether he should be arrested for alleged war crimes and genocide.
The International Criminal Court (ICC) said it was "disappointed" at South Africa's failure to heed its calls to detain Bashir on long-standing arrest warrants over the Darfur conflict.
Although Bashir had already left, the High Court in Pretoria ruled that South Africa’s failure to arrest him was unconstitutional. It also required the government to explain within a week how Bashir had been allowed to leave in defiance of a Court order. The issue overshadowed the African Union Summit in Johannesburg.
So what will be the impact of all this? Interview with Professor Ulf Engel, Lecturer in Politics in Africa at the University of Leipzig, Germany, for JusticeInfo.net:
JusticeInfo.net: Were you surprised that Sudan’s President Omar Al Bashir, wanted by the International Criminal Court, managed to leave South Africa on Monday, despite a Court order barring him from leaving?
Professor Ulf Engel: No, not at all. I expected it to happen earlier, but it’s a usual getaway through an airport that is controlled by the military and the Air Force of the government that has been used in the past to serve some of President Zuma’s friends and allies. South Africa was right from the beginning very clear, signalling that Bashir has nothing to worry about coming to South Africa. Of course now they have what seems to be a constitutional crisis.
JusticeInfo.net: The High Court in Pretoria ruled that South Africa’s failure to arrest Bashir was unconstitutional, but it was too late, he had already left. So do you think it changes anything, this High Court ruling? Does it clarify the immunity issue for other ICC member states?
UE: I don’t think the effect will be that much on other African Union states or ICC member states. But it’s clearly a very clear internal signal vis à vis the ANC government, in particular Zuma, and the kind of unconstitutional, unlawful behaviour that has been established over the past couple of years that several people take issue with. It’s not going to change South Africa’s position or that of AU member states vis à vis indicted sitting Presidents. Bashir visited Nigeria two years ago, he’s travelled to other African countries, and given the decision taken by the Extraordinary Summit of the African Union last year in September, it’s clear that the AU is going for a kind of extraterritorial law with regard to indicting people or not. So outside of the Rome Statute, basically.
JusticeInfo.net: I believe a similar thing happened in Kenya, that there was a High Court ruling, but after Bashir had left. So both in the case of Kenya and I suppose in South Africa now, they are two more countries that Bashir cannot go to…
UE: But there are a lot other member states and he’s not visiting member states where you would expect something of this nature to happen, let’s say Benin, Ghana or Botswana. So I don’t think it’s going to change anything really.
JusticeInfo.net: And do you think the African Union and South Africa will be pleased with today’s outcome?
UE: The Court order was an embarrassment to the African Union, but more so to the heads of state and government than to the African Union Commission, and it also raises a question with regard to South Africa’s role in that institution or organization. There’s been increasing critique not only on South Africa as a member state but also on Madame Zuma as the Chairperson of the Commission, and that doesn’t reflect positively on South Africa.
JusticeInfo.net: You say the court order is an embarrassment to the AU heads of state, but why should they be embarrassed if they are basically on Bashir’s side?
UE: I guess they didn’t expect it and they are used to being above or outside of national law and international law. And just to be reminded that that is not the case and that an international treaty tops a South African cabinet decision is quite good to see. But obviously it comes unexpectedly for most of the people who attended the summit.
JusticeInfo.net: The Court also ordered an investigation into how Bashir was allowed to leave when there was a Court order. Do you think there was complicity, or was it bungled, did they not get the Court order?
UE: Well in principle South Africa is a country able to control its borders, or at least the airports. To fly out from that particular airport takes at least an acknowledgment of the persons who are on the flight by the South African Air Force, by Protocol and by Intelligence, so it’s not without high-level ANC people being involved. Although it seems that his name was not on the list of passengers. But that, of course, is a joke!
JusticeInfo.net: As we know, relations between the AU and ICC were already extremely strained. Do you think this changes anything with regard to that?
UE: I think it will contribute to a hardening of positions on both sides. If you look at the statements coming from the ICC in the last days, very clear and very tough, calling on the South African government to arrest Bashir, that is the kind of policy the AU, or at least the majority of member states, have criticized over the last two years in particular, ever since the indictment of the Kenyan President. That is the kind of statement that the majority of African Union states do not very much like these days. And it seems that there has been another call by some member states to withdraw as a group from the Rome Statute, so that the AU states would cancel membership, which did not happen, but that’s obviously on the books and it was on the books last year when they took that decision to change the Rome Statute or to try to force on the international community that sitting Presidents wouldn’t be indicted.
JusticeInfo.net: Bashir has been playing cat and mouse with the ICC really for years now. In South Africa it looked like there was at least a possibility that something might change. The fact that it didn’t, do you think this undermines the ICC’s credibility?
UE: No, not so much the ICC’s credibility. I think it really has undermined South Africa’s international role, even more so outside of the African continent. It’s undermining any efforts to mediate a position among member states of the African Union, because they are not in unison of the opinion that one should leave the ICC but increasingly this voice is getting more and more response. So I guess the events of the last two and a half days are seriously hurting South Africa’s role internationally in many arenas which are not connected to the ICC. So to be taken seriously in terms of mediation in conflict resolution, African renaissance, it’s getting more difficult now.
JusticeInfo.net: And what do you think will happen now in South Africa? Do you think there’ll be some legislative changes to clarify the issue of immunity in domestic law, or do you think they just prefer to leave it vague?
UE: Usually what happens when public officers speak up against Zuma’s government is that they will be reshuffled, redeployed or sacked. President Zuma’s government is fighting many different little battles. There are issues of corruption, misuse of state funds and similar issues, and also coming up now the FIFA 2010 bribing affair, and the usual response is to undermine these officers who are protected by a special clause in the Constitution, and try to get rid of people who are too critical. So I think that on that side it will be very much an internal battle between the ANC and the rest in South Africa.