Briefly, it seemed Sudanese President Omar al-Bashir, who oversaw an estimated 300,000 deaths in Darfur, would finally face justice. Although it had initially looked as though al-Bashir would travel to the African Union summit in South Africa without problems, this was changed by a South African court’s decision to forbid him from leaving the country until it decided whether he should be arrested and sent to be tried at the International Criminal Court. However, al-Bashir managed to leave the country before the ruling was made, ending chances of his arrest.
Al-Bashir first took power in Sudan after a coup in 1989, and has been re-elected President three times since. Until 2005, his government was engaged in civil war against the southern-based Sudan People’s Liberation Army, and this ultimately led to the formation of the new country South Sudan in 2011. Al-Bashir also faced rebellion in other parts of the country. The most notable case is Darfur, where the Sudanese army and allied militias organized a genocidal counterinsurgency beginning in 2003.
This violence led the UN Security Council to refer al-Bashir to the International Criminal Court in 2005, and in 2009 the ICC issued an arrest warrant for al-Bashir on charges of genocide, war crimes, and crimes against humanity. The ICC is not able to arrest individuals themselves, but instead relies on its 123 member states to carry out arrests. Fear of arrest has restricted al-Bashir’s travel, yet he travelled to a number of non-member states as well as Rome Statute signatories Kenya, Nigeria, and Chad, which all did not carry out their legal obligation to arrest al-Bashir.
South Africa, an ICC member, looked likely to follow in the footsteps of these three countries as al-Bashir travelled to the country for an African Union summit. Al-Bashir’s decision to visit the country suggests he was given reassurances that he would not be arrested. However, after he arrived in South Africa on Sunday, a court ordered al-Bashir to remain in the country until they decided on Monday whether South Africa had a duty to arrest al-Bashir under their commitment to the ICC. The decision came as a surprise, including seemingly to South Africa’s government, which argued that since al-Bashir was visiting an African Union summit in a diplomatic capacity, South Africa was exempt from its ICC obligations.
On Monday, the court heard arguments on South Africa’s obligation to arrest al-Bashir. Somehow, officials lost track of al-Bashir’s whereabouts, and as the court heard arguments al-Bashir boarded his jet at Waterkloof air base and departed for Sudan. There was initially confusion on al-Bashir’s whereabouts, as the Sudanese government claimed he had left the country while South Africa’s government said his name had not been on the list of passengers on the plane. The court eventually ruled that South Africa did have an obligation to arrest al-Bashir, but by that time he had left from South Africa. On al-Bashir’s return to Sudan he was greeted by over 1,000 supporters at the airport.
Questions remain about how al-Bashir was able to leave South Africa. The South African government may have exploited a legal loophole by allowing him to leave from a military air base. The South African High Court has ruled that South Africa violated its own Constitution by failing to arrest al-Bashir, and it is still unclear whether the South African government really knew whether al-Bashir was on the plane as it left the country. South Africa’s reluctance to arrest al-Bashir is consistent with the shift in the foreign policy towards prioritizing African allies, many of which see the ICC as selectively targeting Africans. After the risks al-Bashir ended up facing on this trip, it seems unlikely he will travel to signatories of the Rome Statute again. As violence continues on a large scale in Darfur, chances of al-Bashir’s arrest look slimmer than ever.