Sudan's President Omar al-Bashir at the African Union summit in Johannesburg, South Africa, June 14, 2015. © 2015 Reuters/Siphiwe Sibeko

The undersigned civil society groups, working on international criminal justice and human rights, express our deep disappointment with the actions of South African officials in allowing Sudanese President Omar al-Bashir, under charges of the most serious crimes, to depart the country in defiance of a court order and South Africa’s international legal obligations. We applaud the efforts of the Southern Africa Litigation Centre (SALC), which sought to ensure that the government of South Africa abided by its international obligations by arresting al-Bashir.

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 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 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. National Civil Society Council of Liberia, Liberia
  28. Centre for Human Rights and Rehabilitation, Malawi
  29. Centre for Human Rights Education, Advice and Assistance, Malawi
  30. Centre for the Development of People, Malawi
  31. Network of Religious Leaders Living with or Personally Affected by HIV and AIDS, Malawi
  32. Maphunziro Foundation, Malawi
  33. Coalition Malienne pour la Cour Pénale Internationale, Mali
  34. Femmes et Droits Humains, Mali
  35. Association Mauritanienne des Droits de l’Homme, Mauritania
  36. Associação, Mulher, Lei e Desenvolvimento, Mozambique
  37. Mulher e Lei Na Africa Austral/Women And Law in Southern Africa, Mozambique
  38. AIDS & Rights Alliance for Southern Africa, Namibia
  39. NamRights, Namibia
  40. Access to Justice, Nigeria
  41. Civil Resource Development and Documentation Centre, Nigeria
  42. Coalition for Eastern NGOs, Nigeria
  43. Legal Defence & Assistance Project, Nigeria
  44. National Coalition on Affirmative Action, Nigeria
  45. Nigerian Coalition for the International Criminal Court, Nigeria
  46. Socio-Economic Rights and Accountability Project, Nigeria
  47. West African Bar Association, Nigeria
  48. Women Advocates’ Research and Documentation Center, Nigeria
  49. Rencontre Africaine pour la Défense des Droits de l’Homme, Senegal
  50. African Center for Democratic Studies, Sierra Leone
  51. Centre for Accountability and Rule of Law, Sierra Leone
  52. Society for Democratic Initiatives, Sierra Leone
  53. Centre for Human Rights, University of Pretoria, South Africa
  54. Corruption Watch, South Africa
  55. Gay and Lesbian Network, South Africa
  56. Global Interfaith Network on Sex, Sexual Orientation, Gender Identity, and Expression, South Africa
  57. International Crime in Africa Programme, Institute for Security Studies, South Africa
  58. Human Rights Institute of South Africa, South Africa
  59. Khulumani Support Group, South Africa
  60. Ndifuna Ukwazi, South Africa
  61. Section27, South Africa
  62. Sonke Gender Justice, South Africa
  63. Street Law South Africa, South Africa
  64. New Sudan Council of Churches, South Sudan
  65. Voice for Change, South Sudan
  66. Darfur Bar Association, Sudan
  67. Children Education Society, Tanzania
  68. Kisarawe Paralegals Organization, Tanzania
  69. LGBT Voice, Tanzania
  70. Services Health & Development For People Living Positively HIV/AIDS, Tanzania
  71. Tanzania Human Rights Defenders Coalition, Tanzania
  72. Tanzania Network of Women Living with HIV and AIDS, Tanzania
  73. The Legal and Human Rights Centre, Tanzania
  74. African Centre for Justice and Peace Studies, Uganda
  75. African Freedom of Information Centre, Uganda
  76. Empowered at Dusk Women’s Association, Uganda
  77. Foundation for Human Rights Initiative, Uganda
  78. Human Rights Network, Uganda
  79. Initiative for Rural Development, Uganda
  80. Uganda Coalition for the International Criminal Court, Uganda
  81. Uganda Victims Foundation, Uganda
  82. Engender Rights Centre for Justice, Zambia
  83. Initiative for Civil Liberties, Zambia
  84. Southern Africa Centre for the Constructive Resolution of Disputes, Zambia
  85. Counselling Services Unit, Zimbabwe
  86. Research and Advocacy Unit, Zimbabwe
  87. Zimbabwe Human Rights Association, Zimbabwe
  88. Zimbabwe Human Rights NGO Forum, Zimbabwe
  89. Darfur Relief and Documentation Centre, Switzerland
  90. Sudan Zero Conflict, UK
  91. Waging Peace, UK
  92. Act for Sudan, USA
  93. Coalition for Darfur & Marginalized Sudan, USA
  94. Darfur Women Action Group, USA
  95. Dear Sudan, Love Marin, USA
  96. International Justice Project, USA
  97. Investors Against Genocide, USA
  98. Massachusetts Coalition to Save Darfur, USA
  99. Pittsburgh Darfur Emergency Coalition, USA
  100. San Francisco Bay Area Darfur Coalition, USA
  101. Sudan Unlimited, USA
  102. Coalition for the International Criminal Court
  103. Commonwealth Lawyers Association
  104. Commonwealth Legal Education Association
  105. Commonwealth Magistrates and Judges Association
  106. Fédération Internationale des Droits de l’Homme
  107. Human Rights Watch
  108. International Commission of Jurists
  109. Women’s International League for Peace and Freedom

 

Updated July 10, 2015 to reflect additional signatories.