Africa's battle with the International Criminal Court has ratcheted up another notch, with South Africa defying the international court by welcoming an ICC fugitive at the latest African Union summit.
Sudanese President Omar al-Bashir, wanted on an ICC arrest warrant for genocide and war crimes in Darfur, jetted into Johannesburg on Saturday evening and took part in the African Union's group photo on Sunday as the summit began. He stood smiling in the front row of the photo, next to other African presidents, and gave a thumbs-up gesture to photographers.
Human-rights activists went to a Pretoria court on Sunday and obtained an interim order to prohibit Mr. al-Bashir from leaving South Africa until the court has ruled on whether he should be arrested. The court said the order should remain in force until the case resumes on Monday, but some Sudanese officials said Mr. al-Bashir might be leaving the summit on Sunday night.
His departure was unconfirmed, despite reports that his presidential airplane was positioning itself at a South African air base to prepare to leave. But whether he left or not, the South African government is unlikely to enforce the court order. The ruling political party, the African National Congress, asked the government to ignore the court order.
South Africa, as a signatory of the ICC treaty, was required to arrest Mr. al-Bashir. But it refused to take action on the weekend, without offering any official explanation. Its diplomats in The Hague said there was a "lack of clarity in the law" because of its "competing obligations" to the AU and the ICC, but the international court rejected the argument, saying that South Africa must arrest the Sudanese President immediately.
In the past, Mr. al-Bashir had twice refused to attend events in South Africa, after the government said it would be obliged to arrest him. But this time he apparently felt confident that he would escape prosecution because the AU has adopted a new policy of refusing to accept ICC jurisdiction over its leaders.
His presence in South Africa is a major blow to the ICC's legal and moral authority in Africa, since South Africa has previously been a supporter of the court. Many African leaders have accused the court of a bias against Africa, complaining that the court has prosecuted only African suspects so far.
Most of those prosecutions, however, were requested by African governments themselves, as the court has noted in its defence.
Mr. al-Bashir has said nothing publicly at the summit. Sudan's Foreign Minister Ali Ahmed Karti told local media that Mr. al-Bashir is "a leading president and a member of the African Union, and he will continue attending summits wherever they are."
Mr. al-Bashir has previously attended summits at the AU headquarters in Addis Ababa, but the Ethiopian government – unlike South Africa – has not signed the ICC treaty.
South Africa's ruling party, the ANC, said the African Union's leaders have "immunity" from arrest at global summits because of "international norms."
Human-rights groups, along with the ICC itself, strongly disagreed with this argument and demanded that Mr. al-Bashir must be immediately arrested.
"Al-Bashir is a fugitive from justice," Amnesty International's research director for Africa, Netsanet Belay, said in a statement on Saturday. "If the government of President [Jacob] Zuma fails to arrest him, it would have done nothing, save to give succour to a leader who is accused of being complicit in the killing, maiming and torture of hundreds of thousands of people in a conflict that has blighted the lives of millions."
The ICC itself, in a ruling on Saturday at its headquarters in The Hague, said the South African government has a clear obligation to arrest Mr. al-Bashir immediately and surrender him to the court.
"There exists no ambiguity or uncertainty with respect to the obligation of the Republic of South Africa to immediately arrest and surrender Omar al-Bashir to the Court," presiding judge Cuno Tarfusser said in his ruling. He said the South African authorities "are already aware of this obligation."
Mark Kersten, a researcher at the London School of Economics who studies the International Criminal Court, said the South African decision to allow Mr. al-Bashir to visit the country could set a precedent that allows him to travel freely across Africa.
"It's clear that this is a rather dark day for the ICC and its relationship with the African Union," he said. "Not only has a member state allowed Bashir onto its territory, but that member state is South Africa, a country which has traditionally been a strong supporter of the Court and which is clearly an influential powerhouse that other African states look to for leadership."