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Legal Expert: South Africa Was Obligated to Arrest Sudan President

by William Eagle June 21, 2015

Sudanese president Omar al-Bashir has once again evaded arrest by the International Criminal Court. In recent years, he's visited – with impunity -- other signatories to the International Criminal Court – including Kenya, Nigeria and Malawi.

The South African High Court had ordered that he stay in the country until it could rule on a request to arrest him. But within a day, he flew back home from Waterkloof Air Base – which is under the command of the South African National Defense Force.

The Mail and Guardian newspaper reports that government representatives told the court that his name was not on the plane's manifest, though the paper says the codename of the flight – Sudan 01 – indicated the president was board.

South African officials say he enjoyed diplomatic immunity since he was invited by the African Union. Newspapers say the chairperson of the AU, Zimbabwe's president Robert Mugabe, said the government assured the organization that Mr. Bashir could safely attend the summit.

That message was reiterated to VOA by Sudan's Information minister.

Experts in international law say South African authorities should have arrested him.

Mark Ellis said the decision to allow Bashir to return home was a political one. But legally, he said, South Africa – as a signatory to the International Criminal Court's Rome Statute – was obligated to follow ICC requests. This – despite a resolution by the African Union urging its members – 33 of whom are signatories to the ICC – not to cooperate with the international court.

Ellis, the executive director of the International Bar Association in London., said, 'In this case, international law would trump the political objective set forth by the African Union. There's no question about that. If you sign up to the Rome Statute [establishing the ICC] you are signing up to the legal obligations to assist the court.'

Supporters of the AU's policy say court orders can be ignored because they say ICC is biased against Africa. Most of its prosecutions have been against leaders in sub-Saharan Africa. Ellis said the focus on Africa is true. But he said seven of the eight cases against leaders south of the Sahara were all requested by African governments that said they lacked the judicial capacity to prosecute. Only one case, against President Bashir, was initiated by the UN Security Council.

The court is now undertaking preliminary investigations into several other countries outside Africa, including Ukraine, Honduras, Palestine, and Iraq.

Supporters also say that AU's policy on diplomatic immunity for sitting presidents is no different from the UN's – which has welcomed leaders ostracized for their human rights records. But Ellis and other international law experts say there's a legal basis for this immunity: the so-called UN Headquarters Agreement approved by the US Congress in 1947. They say there's no such agreement between the AU and the ICC.

The ICC, which has no police force of its own, relies on member states to make arrests. Ellis said becoming a state member of the court is voluntary, and the ICC's options are limited when signatories refuse to meet their obligations.

He said the Security Council, which recommended that the court try President Bashir, could impose travel bans or freeze the assets of Sudanese leaders.

It could also provide incentives for or against states refusing to cooperate with the court. The Council has been silent. Signatories of the ICC treaty, which meet regularly as an Assembly of States Parties, could also take action.

'They meet periodically,' explained Ellis, 'and it is within that Assembly of States Parties that there is supposed to be further pressure on its own members to cooperate with the court. But internally, that [process] has broken down. So even when the court has looked to its own Assembly of States Parties and …asked states to pressure various countries that are part of the assembly to support the court, the assembly has failed. '

African opponents of the ICC are taking action. Many are calling for African governments to withdraw from the court.

President Robert Mugabe has called for the AU to create its own court for human rights. Last year, AU leaders moved to allow one of its own institutions to have jurisdiction over a dozen international crimes.

Ottilia Anna Maunganidze, a senior researcher at the Institute for Security Studies in Pretoria, said 'the protocol amending the protocol to the African Court on Justice, Human and People's Rights ...requires 15 ratifications and as of now there are no countries that have ratified the amendment protocol. There are just countries who have signed it. Whether or not countries begin to ratify in the coming months is something we are yet to see.'

Some members of the Southern African Development Community (SADC) have also called for reviving the SADC Tribunal. It was disbanded five years ago after Zimbabwe challenged its right to hear human rights complaints against member governments. So far, talk of reviving the tribunal has focused mostly only civil, not criminal matters – like labor disputes or issues involving the interpretation of SADC treaties.

Another suggested alternative to the ICC is to encourage African states to adopt universal jurisdiction. The doctrine allows national courts to try cases of genocide, crimes against humanity, war crimes, piracy, drug trafficking and terrorism. For example, the AU says it supports the establishment of an ad hoc court in Senegal to try former Chadian President Hissene Habre. He's wanted for alleged crimes against humanity in the 1980's.

'It is ironic,' said Maunganidze, 'that in trying to get an arrest warrant in South Africa, civil society was actually invoking an existing law in South Africa that also enabled universal jurisdiction. That law was acknowledged by the judges but ignored by the government in flouting the decision of the court to issue an arrest warrant. '

She said the question isn't whether countries will have universal jurisdiction, but whether the courts will have the freedom and independence to exercise that right – once it's adopted.

She added that none of the African alternatives to the ICC would prosecute sitting presidents. Critics say that means impunity for Africa leaders, many of whom stay in power for decades.

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