President al-Bashir, charged with genocide, war crimes and crimes against humanity in connection with the conflict in Darfur was in South Africa from 13-15 June for an African Union Summit.  South Africa was under a clear obligation to arrest him pursuant to two warrants of arrest issued against him by the International Criminal Court (ICC) on 4 March 2009 (for war crimes and crimes against humanity) and on 12 July 2010 (for genocide).

South Africa is a party to the Rome Statute of the International Criminal Court. Pursuant to the terms of that treaty mandating international cooperation and assistance with the ICC, South Africa was required to facilitate the arrest and surrender of President al-Bashir to The Hague in the Netherlands, the seat of the International Criminal Court. In addition, South Africa’s domestication of the Rome Statute of the ICC makes the government’s failure to arrest President Omar al-Bashir a contravention of domestic law as well.

On 13 June, ICC Presiding Judge Cuno Tarfusser issued a decision declaring that “there exists no ambiguity or uncertainty with respect to the obligation of the Republic of South Africa to immediately arrest and surrender Omar al-Bashir to the Court, and that the competent authorities in the Republic of South Africa are already aware of this obligation.”

Against this background, and because the South African authorities did not appear to intend to effect the arrest of President al-Bashir, the Southern African Litigation Centre moved an application once al-Bashir was in South Africa to compel the Government of South Africa to discharge its legal obligations to arrest al-Bashir and surrender him to the ICC. During the proceedings before the Pretoria High Court, Justice Hans Fabricius made an interim order “compelling Respondents to prevent President Omar al-Bashir from leaving the country until an order is made in this court” after the State opposed the application.

We noted with deep concern reports that rather than arresting President al-Bashir, South African officials apparently allowed him to leave the country in direct defiance of the order by the Pretoria High Court. The actions pose serious consequences for the independence of the judiciary in South Africa and demonstrate a flagrant lack of respect for the rule of law and the rights of Darfur’s victims to have access to justice.

As made clear by ICC Presiding Judge Cuno Tarfusser in his 13 June decision: “the immunities granted to Omar Al Bashir under international law and attached to his position as a Head of State have been implicitly waived by the Security Council of the United Nations by resolution 1593 (2005) referring the situation in Darfur, Sudan to the Prosecutor of the Court, and that the Republic of South Africa cannot invoke any other decision, including that of the African Union, providing for any obligation to the contrary.”

The recent actions by South Africa have the potential to erode the people’s confidence in the administration of justice particularly because it raises issues of equality before the law, the legitimacy of the courts and court orders being binding on everyone as provided for in Article 165 (2), (4) and (5) of the Constitution of South Africa (1994) respectively. If State officials can disregard with impunity the interim order of the Pretoria Court, what will stop them from undermining future court orders? That is the question foremost on the minds of many South Africans today.

We call on the courts of South Africa to establish accountability and on the government to undertake an independent investigation into the circumstances that allowed for the departure of President al-Bashir in defiance of the Pretoria Court order and international arrest warrant and for full cooperation with the Court’s own inquiry on the matter. Those responsible must be brought to prompt justice, including for contempt of court. We also call on the Assembly of States Parties of the ICC to take appropriate action to address non-compliance by South Africa and other States who breach their obligations of cooperation and assistance under the ICC Statute. We call on the United Nations Security Council which was briefed by the ICC Prosecutor on the situation in Darfur on 29 June to strongly reaffirm the obligation of States parties to duly cooperate with the ICC. Members of the Security Council, who referred Darfur to the ICC, have a special responsibility to fully support and facilitate the prosecutor’s continued work.

We also call on governments and political parties alike to respect the space afforded to civil society organisations, pursuant to the South African Constitution, to litigate in the interests of the public. Matters of justice and accountability are pursued in the interests of the public, and civil society organisations have a mandate that warrants action when government authorities act in contravention of constitutionally protected values. Access to justice is a constitutionally enshrined right that all are entitled to utilise.

This document has been signed by the following organizations:

  1. Associação de Reintegração dos Jovens/Crianças na Vida Social, Angola
  2. Associação Justiça Paz e Democracia, Angola
  3. Missão de Beneficência Agropecuária do Kubango, Inclusão, Tecnologias e Ambiente, Angola
  4. Omunga Association, Angola
  5. DITSHWANELO – The Botswana Centre for Human Rights, Botswana
  6. Coalition Burundaise pour la Cour Pénale Internationale, Burundi
  7. Cameroon Coalition for the International Criminal Court, Cameroon
  8. Associação Caboverdiana de Mulheres Juristas, Cape Verde
  9. Coalition pour la Cour Pénale Internationale de la République Centrafricaine, Central African Republic

10. Coalition Ivoirienne pour la Cour Pénale Internationale, Côte d’Ivoire

11. Groupe de Travail sur les Instruments Internationaux de l’ONU, Côte d’Ivoire

12. Observatoire Ivoirien des Droits de l’Homme, Côte d’Ivoire

13. Réseau Equitas, Côte d’Ivoire

14. Action Congolaise pour le Respect des Droits Humains, Democratic Republic of the Congo

15. Club des Amis du Droit du Congo, Democratic Republic of the Congo

16. Observatoire decentralize de la RADDHO pour la Région des Grands Lacs, Democratic Republic of the Congo

17. Vision Sociale, Democratic Republic of the Congo

18. Human Rights Concern - Eritrea

19. African Centre for Democracy and Human Rights Studies, Gambia

20. Africa Legal Aid, Ghana, Netherlands

21. Media Foundation for West Africa, Ghana

22. International Center for Policy and Conflict, Kenya

23. International Commission of Jurists, Kenya

24. Kenya Human Rights Commission, Kenya

25. Kenyans for Peace with Truth and Justice, Kenya

26. Transformation Resource Centre, Lesotho

27. Centre for Human Rights and Rehabilitation, Malawi

28. Centre for Human Rights Education, Advice and Assistance, Malawi

29. Centre for the Development of People, Malawi

30. Network of Religious Leaders Living with or Personally Affected by HIV and AIDS, Malawi

31. Maphunziro Foundation, Malawi

32. Coalition Malienne pour la Cour Pénale Internationale, Mali

33. Femmes et Droits Humains, Mali

34. Association Mauritanienne des Droits de l’Homme, Mauritania

35. Associação, Mulher, Lei e Desenvolvimento, Mozambique

36. AIDS & Rights Alliance for Southern Africa, Namibia

37. NamRights, Namibia

38. Access to Justice, Nigeria

39. Civil Resource Development and Documentation Centre, Nigeria

40. Coalition for Eastern NGOs, Nigeria

41. Legal Defence & Assistance Project, Nigeria

42. National Coalition on Affirmative Action, Nigeria

43. Nigerian Coalition for the International Criminal Court, Nigeria

44. Socio-Economic Rights and Accountability Project, Nigeria

45. West African Bar Association, Nigeria

46. Women Advocates’ Research and Documentation Center, Nigeria

47. Rencontre Africaine pour la Défense des Droits de l’Homme, Senegal

48. African Center for Democratic Studies, Sierra Leone

49. Centre for Accountability and Rule of Law, Sierra Leone

50. Society for Democratic Initiatives, Sierra Leone

51. Centre for Human Rights, University of Pretoria, South Africa

52. Corruption Watch, South Africa

53. Gay and Lesbian Network, South Africa

54. Global Interfaith Network on Sex, Sexual Orientation, Gender Identity, and Expression, South Africa

55. International Crime in Africa Programme, Institute for Security Studies, South Africa

56. Human Rights Institute of South Africa, South Africa

57. Khulumani Support Group, South Africa

58. Ndifuna Ukwazi, South Africa

59. Section27, South Africa

60. Sonke Gender Justice, South Africa

61. Street Law South Africa, South Africa

62. New Sudan Council of Churches, South Sudan

63. Voice for Change, South Sudan

64. Darfur Bar Association, Sudan

65. Darfur Relief and Documentation Centre, Switzerland

66. Children Education Society, Tanzania

67. Kisarawe Paralegals Organization, Tanzania

68. LGBT Voice, Tanzania

69. Services Health & Development For People Living Positively HIV/AIDS, Tanzania

70. Tanzania Network of Women Living with HIV and AIDS, Tanzania

71. African Centre for Justice and Peace Studies, Uganda

72. African Freedom of Information Centre, Uganda

73. Empowered at Dusk Women’s Association, Uganda

74. Foundation for Human Rights Initiative, Uganda

75. Human Rights Network, Uganda

76. Initiative for Rural Development, Uganda

77. Uganda Coalition for the International Criminal Court, Uganda

78. Uganda Victims Foundation, Uganda

79. Initiative for Civil Liberties, Zambia

80. Southern Africa Centre for the Constructive Resolution of Disputes, Zambia

81. Counselling Services Unit, Zimbabwe

82. Research and Advocacy Unit, Zimbabwe

83. Zimbabwe Human Rights Association, Zimbabwe

84. Zimbabwe Human Rights NGO Forum, Zimbabwe

85. Sudan Zero Conflict, UK

86. Waging Peace, UK

87. Act for Sudan, USA

88. Coalition for Darfur & Marginalized Sudan, USA

89. Darfur Women Action Group, USA

90. Dear Sudan, Love Marin, USA

91. International Justice Project, USA

92. Investors Against Genocide, USA

93. Massachusetts Coalition to Save Darfur, USA

94. Pittsburgh Darfur Emergency Coalition, USA

95. San Francisco Bay Area Darfur Coalition, USA

96. Sudan Unlimited, USA

97. Coalition for the International Criminal Court

98. Fédération Internationale des Droits de l’Homme

99. Human Rights Watch

100. International Commission of Jurists

101. Women’s International League for Peace and Freedom