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International law demands that Omar al Bashir be handed over to the ICC

President Omar al Bashir of Sudan was overthrown and arrested on 11th April after months of sustained protests by Sudanese citizens who refused to endure his rule any longer. This ousting is the manifestation of the will of the Sudanese people to dismiss a regime that has remained in power for 30 years through dictatorship, kleptocracy, patronage, fear and wide scale human rights abuses. Thousands of citizens took to the streets in the four months preceding al Bashir’s ousting demanding that he step down.  These included social change movements, youth, women, traditional opposition groups, secularists, Islamists – all demanding change.

The Southern Africa Litigation Centre (SALC) has its own particular interest in former President Omar al Bashir after the organisation sought his arrest following his arrival in the country to attend a 2015 African Union Summit. SALC Executive Director Kaajal Ramjathan-Keogh made the following statement in respect of al Bashir’s removal, “While SALC is pleased to hear that President Omar al Bashir has been toppled, this is only the first step towards change. Sudan should also surrender al Bashir to the International Criminal Court to ensure that victims of international crimes can obtain justice. We remind the Sudanese authorities that there are two outstanding ICC arrest warrants for al Bashir. If the authorities are genuinely minded to end mass atrocities and respect the rule of law- it is vital to surrender al Bashir to the ICC”.

The indictment of al Bashir followed the referral to the ICC by the United Nations Security Council to the Court to investigate and prosecute any person suspected of committing international crimes in Darfur, Sudan. The referral was made pursuant to resolution 1593 (2005) which was adopted on 31 March 2005. On 4 March 2009 and 12 July 2010, the ICC issued arrest warrants against Omar Al Bashir for numerous counts of crimes against humanity, genocide and war crimes. All the suspects indicted by the ICC in respect of this resolution remain at large. The ICC does not prosecute any suspects in absentia. It as a result relies on member states to arrest wanted suspects in order to facilitate these prosecutions. South Africa is a member state. Ramjathan-Keogh commented, “We recall the South African government’s complicity in allowing and actively facilitating al Bashir’s departure from the country in violation of an ongoing court process and subsequent court order to arrest him. South Africa acted to actively support al Bashir and in so doing assisted to prop up an illegitimate regime that was committing atrocious human rights violations against its citizens”.

Whether the Sudanese military or the forthcoming transitional authority will act to hand al Bashir over to the ICC remains to be seen.  Ramjathan-Keogh added, “SALC calls for a civilian transitional government in Sudan and a commitment to end to impunity. We have seen the military topple Robert Mugabe in Zimbabwe- without resulting in any real change for Zimbabwean citizens. We caution the Sudanese military against forcing a military solution which fails to facilitate real political change in Sudan”.

Also related to this issue is that on the 6th May the ICC’s Appeals Chamber will hand down its decision in respect of Jordan’s refusal to arrest al Bashir. The Hashemite Kingdom of Jordan appealed against a decision of the Pre-Trial Chamber II which was delivered on 11 December 2017. The Pre-Trial Chamber II found that Jordan failed to comply with its obligations under the Rome Statute when it failed to arrest President Omar al Bashir of Sudan while he was attending the League of Arab States’ Summit in Jordan on 29 March 2017. As part of the sanction for this non-compliance the Pre-Trial Chamber referred Jordan to the Assembly of States Parties and the United Nations Security Council. Jordan Appealed against the decision on 12 March 2018. A similar decision was made against South Africa in 2017 for South Africa’s failure to arrest President Bashir when he attended an AU Summit in Johannesburg in 2015.

On 29 March 2018, the ICC Appeals Chamber issued an invitation to States and Professors of International law to make submissions on the merits of the case. On 29 April 2018, the SALC jointly with international law expert, Professor Bonita Meyersfeld, filed an application for leave to make amicus curiae submissions in the case. The Pre-Trial Chamber did not admit this submission. SALC has been actively involved in bringing cases to compel governments to fulfil their Rome Statute obligations in arresting and surrendering Omar Al Bashir to the ICC. Omar al Bashir is no longer a head of state and as a result does not hold immunity as afforded to heads of state. In the event that he travels outside of Sudan, all states are obliged to arrest him for hand over to the ICC.

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