SA did the right thing by Omar al-Bashir

2015-06-21 16:08
Omar al-Bashir at the AU Summit in Joburg recently. His presence in SA has sparked heated discussions about SA’s legal obligations. Picture: Felix Dlangamandla

Omar al-Bashir at the AU Summit in Joburg recently. His presence in SA has sparked heated discussions about SA’s legal obligations. Picture: Felix Dlangamandla

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1. Omar al-Bashir’s visit to South Africa last weekend was his 11th trip to a member state of the International Criminal Court (ICC) since his indictment in 2009. But none of his visits has produced as much drama because South Africa is supposed to be different, and the world’s expectations of South Africa are, if anything, higher than what South Africa expects of itself.

2. Never before has a head of state been arrested while travelling abroad, unless you count Mary Queen of Scots in 1568, and she had probably abdicated by then. It would have been a radical step for South Africa to arrest al-Bashir and, quite possibly, illegal.

3. All things considered, South Africa’s course of action was correct, so let’s consider some of the things that haven’t been considered in the controversy.

First, an arrest warrant must be domesticated. Under South African law, there is nothing special about ICC warrants – they must be domesticated, like any other warrant from another jurisdiction, and all the same tests and due processes must be followed. (It makes no sense for the bar to be higher to extradite a petty shoplifter to Botswana than to send a head of state to the Netherlands for genocide.)

I don’t know if the National Prosecuting Authority (NPA) ever received a formal request from the ICC as required and, if it did, why the NPA refused to domesticate it. But as far as I know, prosecutors have discretion in these matters.

For one thing, South African prosecutors are probably aware there is good reason to believe the al-Bashir warrant would not have survived the tests required under South African law. The legal/ technical incompetence of the ICC indictment shocked even the supporters of this court. It was as if the prosecutor wanted to indict a head of state to prove the court’s relevance and power – the person never imagined al-Bashir would be arrested, much less tried.

Second, there is a persuasive argument that the ICC contravened its own Rome Statute in asking South Africa to arrest al-Bashir.

While Article 27 of the statute makes it clear that the official capacity as head of state does not confer immunity from ICC jurisdiction, Article 98 says the ICC may not request extradition by a state if doing so would contravene its other obligations under international law. This was deliberate, to avoid putting states in the situation the ICC and its European allies put South Africa in.

Third, the doctrine of head of state immunity is one of the most ancient in customary international law and has repeatedly been upheld by the courts.

Violating it is highly illegal and carries the risk of dangerous interstate tensions (interfering with the person of the head of state is traditionally interpreted as an act of war – besides, South Africa has forces stationed in Sudan.) It is far from clear that the high court even had the power to order al-Bashir’s warrantless arrest.

The big point that has become lost in all the emotion is that due process really matters. This is what makes a justice system just and the elements of due process must be defended most vigorously precisely when they are most inconvenient, or when they stand in the way of satisfying public emotion – no matter how well founded that emotion is.

There are strong points in terms of rule of law on all sides here. Those who equate South Africa’s approach with “weakness”, “lack of principle”, “wanton disregard for the rule of law/Constitution” are engaging in demagoguery with a racial undertone in an environment where so much commentary equates “letting al-Bashir go” with “choosing Africa” and “indifference to genocide and rule of law” – and “arrest al-Bashir” with “choosing the West” and “upholding South Africa’s ideals”.

Firstly, it is not even true that Africa is united in support of al-Bashir because as many African countries have denied him entry as have allowed him to visit.

For some reason, this elementary principle of justice fades into the background. But it shouldn’t, because justice has to be seen to be fair and that sometimes means the guilty will walk free.

It is very odd in these debates for advocates of justice to call, explicitly or implicitly, for inconvenient rules of due process and evidence to be reduced or set aside – this is always done in the name of the victims. This is an abuse of their suffering that should be dispensed with.

So, at a minimum, there are many unsettled legal issues here. The claims for and against are theories from lawyers; they have never been tested in court. Each argument would be subject to numerous appeals. Anyone who pretends there is certainty about what should happen is not being honest. It could take months and possibly years of proceedings to reach a final ruling on whether al-Bashir should be sent to The Hague. How would it work in practice? Would he be allowed to hold Cabinet meetings in prison? The absurdities multiply when you think of what it would mean for South Africa – years of diplomatic tension and the global spotlight on our legal system.

So, the government was wise to decide that the risk of damage to South Africa’s national interests was too great to hold a serving head of state in detention for the time that would be required to sort out these complex issues in the courts.

South Africans should also take note of this trend because this was not the first time the Southern African Litigation Centre (SALC) and Justice Hans Fabricius have collaborated to expand the scope of South Africa’s obligations under the ICC Implementation Act, and it won’t be the last.

Last year, the Constitutional Court upheld Fabricius’ ruling in a case brought by the SALC against theSA Police Service and the NPA, claiming that theact required them to investigate and prosecute claims of torture in Zimbabwe, because alleged perpetrators “regularly travelled to South Africa”. Zimbabwe is not an ICC member and the ICC has no open investigation there.

In effect, this means the courts are committing South Africa to investigate and prosecute crimes anywhere in the world, provided a perpetrator who has or might travel to South Africa can be identified. It is only a matter of time before activists seize on this to compel South Africa to seek the arrest of Chinese officials over crimes in Tibet, Europeans for offences in Libya, Americans over the Middle East and Saudi Arabians over the bombing of Yemen.

It’s fun to toy around with black presidents in funny white turbans, but high-minded principles start to collapse when faced with such realities.

4. This brings us to the extralegal issues about the ICC’s legitimacy. If the image of the hundreds of thousands of victims drives the emotions in favour of al-Bashir’s arrest, legal nuance and due process be damned, it is the reality that the ICC has only indicted Africans that is driving the emotion against it, in Africa in particular.

The ICC has been labelled racist because it has only targeted Africans. The truth is that it only targets Africans because it has no one else to target. It has no choice but to have a “disparate impact” on Africa. Everyone else opted out. Look at a map of ICC members: it is Europe, South America and half of Africa. No Middle East. No Asia. No Russia. No US.

Some countries opted out because they knew they had reason to fear prosecution. But most did not sign on because they worried that a court with such vast powers would be unaccountable and highly vulnerable to political manipulation by pressure groups and other states.

The track record of the ICC has done nothing to allay these fears. Indeed, it has confirmed them.

Even the often-repeated claim that the ICC cannot be seen as biased against Africa because many cases have been referred by African states themselves is a weakness – virtually all these have been about sidelining internal rivals and trying to use the court to settle political scores. That is not why it was created, but the court is so distant from events, so reliant on hearsay, that it has no practical means to protect itself from such manipulations.?There is, therefore, little likelihood that any new states will sign on and no chance that the ICC will ever be anything other than a court in Europe to judge Africa.

As such, the ICC has become an objective impediment to the cause of universal jurisdiction for genocide and crimes against humanity.

This does not mean the victims don’t deserve justice. It means the ICC is incapable of rendering justice to them.?The ANC executive committee’s statement that “the ICC is no longer useful for the purposes for which it was intended” was principled, timely and correct.

?This is very different from opposing universal jurisdiction for genocide and saying that crimes against humanity should be discarded. Who could be against that? Indeed, it should be strengthened, and made universal by renegotiating the Rome Statute in a way that would allow it to attract the support of the states that have spurned it.

South Africa is well placed to take the lead in replacing the ICC with something better. This will entail compromises. But justice that is partial and politicised is no justice at all.

If this doesn’t happen, the artificial confrontation between the West and Africa will continue to deepen, improving progress in terms of universal norms for justice will be frozen, and the victims will remain what they were at the outset: invisible and forgotten, except when they can be used to score points in a debate.

South Africa did not betray the rule of law in its handling of the al-Bashir episode, much less its founding ideals. It was the New South Africa, after all, that articulated the doctrine that conditional immunity for so-called political crimes was not a necessity, but a virtue. Letting al-Bashir go home to face the judgement of history in his own time was a South African move to the core. – Rapport

De Lorenzo works as an analyst in Rwanda and is a visiting fellow at the American Enterprise Institute. He is also a visiting fellow at the Stern School of Business, New York University



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