South Africa to consider withdrawing from International Criminal Court

Warning comes following failure to detain Sudan’s president Omar al-Bashir

South Africa will review its membership of the International Criminal Court (ICC) and consider withdrawing as a last resort in light of demands made of it to detain Sudan's president Omar al-Bashir, its government said yesterday.

The warning was delivered by minister in the presidency Jeff Radebe as state lawyers lodged an affidavit with a court in Pretoria outlining the circumstances surrounding Mr Bashir's discreet departure from South Africa early last week. This occurred despite the issuance of an interim court order compelling the government to detain him.

According to documents lodged at the North Gauteng high court, Mr Bashir was able to leave the country because his passport had not been handed in to immigration control at Waterkloof military airbase.

On Wednesday the court ruled that the government had "clearly violated" the law by allowing Mr Bashir, who was attending an African Union summit in South Africa, to leave.


It added that criminal charges should be considered by the National Prosecution Authority against those responsible for allowing him to flee.


Under the Rome Statute, the treaty South Africa signed up to that established the ICC, the government is legally bound to arrest Mr Bashir, who faces genocide and war-crimes charges at the court in The Hague relating to the death of an estimated 300,000 people in Sudan.

The affidavit submitted by home affairs director general Mkuseleni Apleni denied any wrongdoing by the government, saying it complied with the court's order and all ports, airports and border posts had been ordered to prohibit Mr Bashir from leaving the country.

However, under VIP protocol passengers leaving the country do not have to be present when their passports are stamped by immigration officers, and neither do the officials receive a passenger list for these departing flights. Mr Apleni said as Mr Bashir’s passport was not one of those presented to the officers, the passports were endorsed for departure. The affidavit appears to suggest Mr Bashir slipped out of the country unbeknownst to immigration.

“We have challenges with the ICC and those matters will be ventilated as we go forward,” Mr Radebe said.

Bill Corcoran

Bill Corcoran

Bill Corcoran is a contributor to The Irish Times based in South Africa