At the heart of it is the fate of President Omar al-Bashir of Sudan, wanted by the International Criminal Court for war crimes, and if South Africa, which hosted him for the AU summit, should arrest him.
Last night it seemed Bashir had slipped out of the country, in defiance of an interim order issued by the Pretoria High Court to stop him from leaving South Africa until the court had ruled on an application to have him handed over to the ICC.
The Mercury understands that Bashir left South Africa under heavy police escort.
“He was escorted by all the security detail, including the SAPS VIP Protection Unit, metro police and intelligence officials,” said a highly placed source familiar with the developments.
Judge Hans Fabricius had instructed the respondents to file papers this morning, with the case set down to resume at 11.30am for arguments.
The Hague issued a judgment this week which made it clear that South Africa had an obligation to arrest al-Bashir on his arrival in the country and surrender him to the International Criminal Court.
Bashir is accused of committing war crimes, crimes against humanity and genocide which claimed the lives of more than 400 000 people and left an estimated 2 million displaced during the Darfur conflict.
ICC Judge Cono Tarfusser stated that South Africa was aware of its obligations under the Rome Statute, and could not invoke any other decision, including one taken by the AU, to the contrary.
The government has been balancing on a knife-edge for some time between its often competing commitments to African solidarity on one hand and to international law – and South Africa’s own constitution – on the other (see opinion on how this would be a breach of South African law, Page 2).
Advocacy group the South African Litigation Centre brought the urgent application against ministers and directors-general of the departments of Justice, State Security, International Relations, and Home Affairs; the national commissioner of police, the national director of public prosecutions, the head of the Hawks, and the head of the priority crimes litigation unit of the National Prosecuting Authority to have al-Bashir arrested.
The litigation centre’s Isabel Goodman argued yesterday that there was a “real risk of him leaving”, citing other cases in which people left despite orders having been given to keep them in the country.
During yesterday’s court proceedings, senior advocate William Mokhari for the State, asked for a postponement to allow more time to consult and examine documentation, saying they were dealing with a very sensitive matter, of the “sitting president of another African country”.
He said it was late in the day, and there would be no time to effectively carry out an order to officials. But he said “there is no indication that he (Bashir) might want to leave before the end”.
But Sudan’s Information Minister, Ahmed Bilal Osman, reportedly confirmed last night thatBashir was on his way home.
This has not been confirmed by South African authorities.
Bashir was photographed at the summit for heads of state addressed by President Jacob Zuma in Sandton last night, but Eyewitness News reported seeing him leave the chamber an hour later.
The invitation to Bashir to attend the summit despite his indictment by the ICC indicates the AU’s attitude towards the jurisdiction of that court on the continent and the fact that, in future, the AU will rely on the African Court of Justice and Human Rights to prosecute cases of war crimes.
The South Africa government stands by its gazette order last Thursday that Bashir was not to be arrested. This is consistent with the decisions of the 2012 AU summit which stipulated non-co-operation with the ICC, and warned that all AU states had to abide by this decision. Failure to do so would invite sanctions from the AU.
“The South African Government’s decision to host Sudanese President Omar al-Bashir will trump the ICC arrest warrant at the end of the day,” said a senior South African government official who spoke on condition of anonymity.
“South Africa considers itself bound by the decisions of the AU with regard to the ICC, and believes the continent must speak with one voice,” the official said.
Bashir attended the Comesa meeting in the DRC last year and the government of the DRC, which is also a signatory to the Rome Statute, refused to arrest him despite having been given a warning similar to those issued to South Africa.
In an earlier case, Nigeria also ignored the ICC and hosted Bashir in July 2013, indicating that it believed the AU overrode the dictates of the ICC.
Elise Keppler, justice director of Human Rights Watch, warned: “Not arresting Bashir would be a major stain on South Africa’s reputation for promoting justice for grave crimes.”
Netsanet Belay, Amnesty International’s director for Africa, said: “Bashir is complicit in the killing, maiming, and torture of hundreds of thousands of people. He is a fugitive from justice. South Africa has an obligation to arrest him given his long-standing indictment.”
The AU is opposed to the arrest of any sitting African head of state and the arrest of Bashir would be seen to set a precedent.
A BBC Africa correspondent said South Africa had often shied away from this sort of diplomatic headache, but this time the government had stepped straight, and deliberately, into controversy, courting Western fury by rolling out the welcome carpet for Bashir. A comment piece filed on the BBC website said South Africa must have foreseen the possibility of a legal challenge. If Bashir was allowed to return home unimpeded, South Africa’s actions would be condemned.
Shannon Ebrahim, Peter Fabricius and Ntando Makhubu
• The Mercury, 15 Jun 2015