Why South Africa let an alleged war criminal get away

JOHANNESBURG, South Africa — One of the world’s most wanted men, an international fugitive with genocide and war crimes charges against him, flew into Johannesburg this weekend on his presidential jet.

He posed for a photo, smiled and gave the “thumbs up” gesture, attended a bit of the African Union summit — and then apparently disappeared.

The South African government claimed it had no idea where the man was. “He could be in his hotel, or doing shopping,” a government lawyer said on Monday.

In fact, Sudanese President Omar al-Bashir was soaring to 40,000 feet, fleeing South Africa on his private plane as journalists tracked its departure back to Khartoum.

It wasn’t supposed to go like that. At least not as far as the International Criminal Court was concerned. 

The ICC has issued warrants for Bashir’s arrest on charges of war crimes, crimes against humanity and genocide for the deaths of hundreds of thousands in Darfur. Having learned that he was headed to Johannesburg, the ICC called for South Africa “to spare no effort” in ensuring the arrest warrants were executed.

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Ban Ki-moon, the UN secretary general, described the enforcement of the arrest warrants as “a matter I take extremely seriously.” Human rights activists swiftly went to court demanding Bashir’s arrest.

But the South African government argued that Bashir had immunity because he was in South Africa for the AU summit, likening it to the United Nations.

Bashir seems to have received assurances he would not be detained. He arrived in South Africa late Saturday afternoon, landing at Johannesburg's main O.R. Tambo International Airport, before attending AU meetings Sunday at a convention center in the ritzy business district of Sandton, also known for its high-end shopping mall.

While the episode appears farcical, for South Africa it reveals a worrying willingness by the government to ignore its own courts as well as international law.  

At the High Court in Pretoria, a panel of judges ruled Monday afternoon that Bashir must be arrested — only to learn that the Sudanese president had already left the country, in defiance of an earlier court order barring him from leaving South Africa while legal proceedings were underway. 

While the AU has decided not to cooperate with the ICC, which it criticizes as being biased against African leaders, Bashir had for years avoided South Africa along with other countries that are signatories to the Rome Statute, under which the ICC was established. According to this treaty, which South Africa incorporated into its own national law, Bashir should have been arrested and handed over to the ICC.

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South Africa has previously been a strong supporter of the international court, but this weekend’s developments show a major shift in tone. 

The ruling African National Congress said in a statement that the ICC “is no longer useful for the purposes for which it was intended — being a court of last resort for the prosecution of crimes against humanity.”

An official government Twitter account derided the ICC as a “kangaroo court,” later deleting the tweet.

“This is a sad day for South Africa and a blow to the rule of law,” said Anton du Plessis, managing director at the Institute for Security Studies, a Pretoria-based think tank. “Until now, the country has been a champion of international justice and has done more than most in Africa to make sure victims get justice.”

“Criminal justice, good governance and the rule of law in the country have been systematically eroded in recent years,” du Plessis added. “We shouldn't be surprised that this now extends to the international level.”

Elise Keppler, acting director of international justice at Human Rights Watch, said that when Bashir “took off from South Africa today, he took with him the hopes of thousands of victims of grave crimes in Darfur who wish at last to see justice done.”

"By allowing this shameful flight, the South African government has disregarded not only its international legal obligations, but its own courts," she said.