In the end SA did the right thing

2009-08-20 12:23

IN ONE month, South Africa shifted from withholding cooperation from the International Criminal Court regarding the indictment of Sudanese president Omar al-Bashir to restating its support for our international obligations under the Rome Statute, which governs the court’s operations.

Early in July, South Africa was party to a decision by the African Union (AU) to withhold cooperation. This opened the door to a potential future visit to South Africa by al-Bashir.

Within two weeks, 17 of South Africa’s civil society organisations – including the Human Rights Commission – had denounced the action as unconstitutional and called on the government to honour its treaty obligations. One of the organisations began preparing court papers to declare South Africa’s compliance with the AU decision invalid and unlawful.

In the end our government did the right thing.

On July 30, International Relations director-general Ayanda Ntsaluba announced that while South Africa had reservations about the case against the Sudanese president, al-Bashir would be arrested if he entered South African territory. Given South Africa’s symbolic and strategic importance for Africa, this announcement struck a potentially fatal blow to the AU’s plans for impunity for al-Bashir.

The South African government must be commended for taking this stand. It is not only complying with its international law obligations, but is signalling respect for the rule of law and the values underlying our Constitution.

In July more than 160 civil society groups from across the continent endorsed a call for African states to commit themselves to enforcing the ICC’s arrest warrant against al-Bashir.

These organisations represent a widely held view that impunity for the worst crimes known to humankind is no longer acceptable. Their stand dispels the myth that there is popular support on the continent for a so-called “unity of purpose” in rejecting the indictments of African leaders. Such solidarity is confined largely to those ruling elites who have cause to fear the rule of law.

Ntsaluba’s announcement dispelled another widely propagated myth, that the ICC is anti-African since all its current cases arise from the continent. He pointed out that of the four cases before the ICC, three were referred to the court by African governments. The Darfur complaint was referred to the ICC by the UN Security Council.

There are genuine concerns that the arrest and prosecution of al-Bashir could cause the collapse of the 2005 “comprehensive” peace agreement between Sudan’s warring north and south, leading to instability throughout the region. Others claim that the movement for peace is bigger than any one person, including al-Bashir.

This debate, while important, is premised on the perception that al-Bashir’s arrest is imminent. In reality, it is unlikely to happen any time soon. While the Security Council resolution that referred the Darfur matter to the ICC requires Sudan’s full cooperation, the Sudanese government is not likely to hand over its head of state. Al-Bashir plans his travels with meticulous care these days: he does not visit countries where he risks arrest.

As head of state he is free to pursue peace in his country if he so wishes. Should he decline to do so, he merely provides his prosecutors with corroboration for the allegations made against him in the indictment. The real and immediate effect of the indictment is not on the peace process, but rather on al-Bashir’s prestige as a head of state – and his travel plans.

The al-Bashir saga has demonstrated that sustained civil society action can reap benefits. Aside from South Africa, countries such as Uganda, Chad and Botswana have indicated that al-Bashir would be an unwelcome guest in their territories. Civil society activists on the continent are now setting their sights on those states that have ratified the Rome Statute but who continue to support the AU decision not to cooperate with the ICC.

These countries must stand by their treaty or withdraw.

  • Varney works with the International Centre for Transitional Justice

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