ICC 'disappointed' in failure to arrest Bashir: prosecutor

South Africa's President Jacob Zuma (L) talks with Sudan's President Omar al-Bashir.
Image by: MOHAMED NURELDIN ABDALLAH / REUTERS

The International Criminal Court's chief deputy prosecutor said on Monday that South Africa's failure to arrest Sudanese President Omar al-Bashir was "disappointing", as the African leader jetted back to Khartoum.

We are "disappointed that he was not arrested. Our position has always been that South Africa's obligation is clear and unequivocal. It had an obligation to arrest him," James Stewart told AFP.

The South African government’s failure to arrest Sudan's President Omar al-Bashir was inconsistent with the South African Constitution‚ Judge President Dunstan Mlambo ruled on Monday.

The North Gauteng High Court found that the South African government was in contempt of court and should have arrested and detained al-Bashir.

Judge Mlambo said the government had failed to take reasonable steps to arrest al-Bashir and detain him pending a formal request for his arrest by the International Criminal Court (ICC).

The court ruling follows earlier reports by local and international media that a Sudanese plane had been sighted leaving Waterkloof Air Force Base near Pretoria at midday.

State advocate William Mokhari told the court after its ruling that the South African government had confirmed that al-Bashir had left South Africa from Waterkloof earlier on Monday.

He told the court the exact circumstances of al-Bashir’s departure would be investigated.

The court then ordered that government file an affidavit within seven days disclosing when al-Bashir left and which port of departure was used.

The Southern African Litigation Centre brought the application for an order compelling South Africa to issue a warrant for al-Bashir’s arrest on Sunday after the ICC called for al-Bashir to be arrested at the African Union summit in Johannesburg.

The North Gauteng High Court on Sunday extended an earlier interdict barring al-Bashir from leaving South Africa pending the decision on an application to compel South Africa to arrest him for alleged war crimes.

Judge Hans Fabrucius ruled on Sunday that authorities take all necessary steps to ensure that al-Bashir stay put until 11:30am on Monday when the court was expected to make a final decision on the application. The judge also ordered that Department of Home Affairs Director-General Mkuseli Apleni ensure that the order was served on individual officials in charge of all the country's points of exit.

The ICC indicted al-Bashir for war crimes in 2009 for his role in the 2003 conflict which resulted in the death of more than 300‚000 people and displaced 2.5-million people‚ according to the United Nations.