Bashir Leaves South Africa

I’m not one to get hysterical over ICC news, but this recent development today strikes me as deeply problematic, and perhaps a tipping point. But perhaps not the tipping point that the ICC detractors have in mind.

Sudanese President al-Bashir was attending a conference in South Africa this weekend with other heads of state and officials from several African nations. The government of South Africa took the position that Bashir was entitled to immunity and could not be arrested; apparently, this was Bashir’s assumption as well, otherwise I doubt he would have traveled to South Africa in the first place.

However, a South African court ruled that Bashir should be arrested, since South Africa voluntarily signed the Rome Statute and has a legal obligation as a member of the court to execute its arrest warrants. You will recall that the Sudan case began as a Chapter VII referral from the UN Security Council.

In response, the South African government whisked Bashir out of the country, apparently in open defiance of a judicial order preventing them from letting him leave, and just hours before the Supreme Court of South Africa ruled that the government was under a legal obligation to arrest him and explicitly finding that the government’s failure to arrest him would be contrary to the South African Constitution.

From the outside looking in, this looks awfully close to being on the precipice of a constitutional crisis in South Africa. Although one would expect inter-branch disputes in any divided government, such open defiance of a binding judicial order strikes me as deeply harmful to the rule of law. From news reports, I see no evidence that the original judicial order was suspended or otherwise not operative in the hours preceding the Supreme Court’s decision. (But if a reader from South Africa knows the specifics on this question, and the news reports are wrong, please educate us in the comments section.)

What will the ICC do? It strikes me that this level of open defiance — not just of the ICC but also of one’s own judiciary — takes the failure to arrest Bashir to a whole new level. Some will no doubt suggest that this entails that the ICC is a sham with no real power or authority. I take the opposite conclusion. I wonder if this brazenness will now force either the ICC Assembly of State Parties or the Security Council to finally engage in some enforcement actions against states who are not cooperating with the ICC on this matter. Indeed, I would think that the Assembly of State Parties is the appropriate body to take decisive action on this matter. Not only has the ICC concluded that Bashir must be arrested, head of state immunity notwithstanding, but apparently the South African Supreme Court agreed as well. So what excuse can the South African government muster? It would seem that neither international nor even domestic law supports their position, thus weakening the rhetorical power of their arguments. They cannot even suggest that they were caught between their international and domestic obligations.

Of course, I am not an expert on South African law. In the US it is very difficult to get a court to issue an order demanding that the executive arrest someone. (A writ of mandamus in that context would be highly unusual.) Usually the judiciary does the opposite: tells the executive to release someone they have arrested. But South African law might be different in that respect, as indeed are civil law jurisdictions that allow for the triggering of the criminal process in ways other than the discretionary arrest of the suspect by the police. Again, I’d appreciate any information on South African procedure that readers might have.

UPDATE: The name of the court that issued the ruling was the North Gauteng High Court in Pretoria.