The North Gauteng High Court has postponed the hearing on an urgent application to compel South Africa to arrest Sudanese President Omar Al-Bashir for war crimes and crimes against humanity until Monday morning.
In the meantime‚ Judge Hans Fabricius reaffirmed that the Sudanese president may not leave South Africa until a final order is made in the application.
The judge also ordered that Department of Home Affairs Director-General Mkuseli Apleni ensure that the order is served on individual officials in charge of all the country’s points of exit. The Judge also ordered the home affairs department to provide proof that the order had been served on the officials.
Bashir is in South Africa to attend the African Union heads of state summit. The Southern African Litigation Centre brought the application for an order compelling SA to issue a warrant for Al-Bashir’s arrest on Sunday following a call for his arrest at the summit by the International Criminal Court.
Arguing for the order be served on individuals in charge of all points of exit‚ the centre’s lawyer‚ Isabel Goodman‚ argued that this would ensure who should be held liable should Al-Bashir slip off.
She said immigration officials at OR Tambo had refused to accept the interim barring order Judge Fabricius granted on Sunday morning.
“We sought to serve the order but officials were not willing to accept it. We fear that officials will not service the order. Individual officials should be given responsibility to service the order so that if he leaves‚ then we know against whom the contempt application would be brought‚” she said.
In court papers the Executive director of the SALC, Kaajal Ramjathan-Keogh said that the Centre had briefed its lawyers since 2009 to prepare papers when they became aware that Bashir was invited to inauguration of President Jacob Zuma.
The SALC says it should not have been necessary for them to compel government to perform its constitutional duty of arresting Sudan’s president, but the Centre want the court to compel the State comply with their international obligations by arresting Bashir.
Ramjathan-Keogh said that they were alerted to Bashir presence in country from a number of media reports. Bashir was also listed as a speaker on the AU Summit Programme.
Bashir is accused committing genocide and war crimes and crimes against humanity in the Dafur, Sudan. On 4 March in 2009 the International Criminal Court issued an arrest warrant for the Bashir.
In the court papers SALC claims that Bashir is criminal responsible for attacks against a section of the civilian populations of Darfur, which including murder, rape, torture, extermination and forcibly moving large numbers of civilians.
Crimes were allegedly committed in during five year counter-insurgency campaign by Sudan’s government which was started in 2003. The campaign was aimed against the Sudanese Liberation Movement, The Justice and Equality Movement and other armed groups.
The conflict resulted in the death of more than 300‚000 people and displacement of 2.5-million people‚ according to United Nations.
Ramjathan-Keogh argued in its papers that under the Rome Statute those crimes are prohibited. The South African government signed the Rome Statute in July 2000 and ratified it in November that year. Because the law was ratified South Africa it is obliged to abide by the laws of the statute and therefor assist the ICC in bring Bashir to stand trial.
The SALC says that Minster of Safety and Security and National Commissioner of the South Africa Police Service among others are required to “arrest and/or detention of person whom, under South African and international law, are suspected of crimes.”
SALC also said that South Africa had failed in legal duties inviting Bashir to enter South Africa in the first place and then failing to arrest him when he arrived.
The ICC claims that irrespective of the fact the Bashir is a sitting president, that does not exclude his criminal responsibility nor does it grant him immunity. The Centre said it was matter of urgency for the court to rule it was likely Bashir would leave the country once he becomes aware of the application.
Ramjathan-Keogh said if Bashir left the country he would be beyond the reach of the South African judicial system and South Africa would have failed in its international duties to the ICC.
In a statement‚ the ICC called on all states to fulfil their obligations to execute the arrest warrants against Al Bashir.
“In light of information regarding a possible travel to South Africa of Mr Omar Hassan Ahmad Al-Bashir‚ President of Republic of Sudan‚ to participate in the 25th Summit of the African Union‚ the President of the Assembly of States to the Rome Statute of the International Criminal Court‚ H.E. Mr Sidiki Kaba‚ recalls that two arrest warrants issued by the Court against Mr Al-Bashir remain outstanding.
“The President of the Assembly expresses his deep concern about the negative consequences for the Court in case of non-execution of the warrants by States Parties and‚ in this regard‚ urges them to respect their obligations to cooperate with the Court.
“To this end‚ he calls on South Africa‚ which has always contributed to the strengthening of the Court‚ to spare no effort in ensuring the execution of the arrest warrants if the information received is confirmed‚” the ICC statement read.
Opposing the matter on Sunday‚ Isabelle Ellis‚ for the SA government‚ argued that there was a Cabinet decision to adopt the African Union’s (AU’s) resolution not to comply with the ICC’s call to arrest Bashir.
The Judge said that the hearing into the matter would resume at 11.30am on Monday June 15.