Former ICC judge speaks about Omar al-Bashir case

Navi Pillay
Navi Pillay

Navi Pillay is a previous judge of the International Criminal Court. Ferial Haffajee spoke to her about the case of Sudan’s president, Omar al-Bashir.

In dealing with the case of a warrant issued for the arrest of Sudan’s president, Omar al-Bashir, South Africa’s government faced a cruel conundrum, caught between its continental obligations to the African Union (AU) – which resolved that International Criminal Court (ICC) warrants against sitting heads of state should not be acted upon – and its global obligations under the Rome Statute. Do you agree? 

That may be a political perspective. South Africa has undertaken certain international obligations to which it must accede. There is no special conflict between the two [obligations], except the AU adopted a resolution saying sitting heads of state should not be prosecuted. The Rome Statute says there should be no amnesty or immunity, even for incumbents. 

Some academics say a recent International Court of Justice judgment affirmed that a sitting head of state [in this case in the Democratic Republic of Congo (DRC)] should not be prosecuted, and they argue this can be applied in the case of al-Bashir. But the Rome Statute says the Security Council can refer cases against sitting heads of state. 

These are serious crimes. I think it is incredible that people can escape prosecution because they are sitting heads of state. On our continent, leaders serve for very, very long times. The AU’s own commission was critical of that [concerning sitting heads of state]. 

South Africa is bound by a progressive Constitution and it should prioritise compliance. Even though the AU adopted the resolution, it has not asserted that in respect of any individual. The AU is committed to ending impunity for serious crimes.

I once had a conversation with AU Commission chairperson Nkosazana Dlamini-Zuma and she said the extension of the mandate of the African Court of Human and Peoples’ Rights was so that African countries could try their own people. Regional courts should be empowered, but the judges [of that court] tell me their concern is that it was set up primarily for individuals without recourse to justice.They feel that if there is an extension of jurisdiction without funding, it would curtail their effectiveness. 

Professor John Dugard, a South African professor of international law and judge ad hoc of the International Court of Justice, has said the ICC and South Africa’s membership of it is a legacy of former president Nelson Mandela. Do you agree? 

Mandela was very supportive of justice and international justice and was of the opinion we had reached impunity in Africa. I think he was thinking of the decades when people of Africa had no justice. 

This week, the judge president of the high court in Pretoria in his judgment on the al-Bashir matter said: ‘If the state, an organ of state or a state official does not abide by court orders, the democratic edifice will crumble stone by stone until it collapses and chaos ensues.’ Is the rule of law imperilled because government ignored a court order to prevent al-Bashir from leaving South Africa? 

I would not say it’s imperilled. But there is a risk that it sends a message of encouraging lawlessness. There is a risk of violence against people and other crimes not being investigated. The foundational principle of any democratic state is respect for the rule of law. The good example must come from government. 

The ANC’s national executive committee has heard a sizable lobby for South Africa to pull out of the Rome Statute. What do you think of such a move? 

Personally, I think it is extremely unlikely that South Africa or any African country will withdraw from the ICC. A majority of African countries played an enormous role in asking for this court. 

We have leaders who stole vast amounts [of public money] and killed many people. They found safe refuge on the French Riviera or in Zimbabwe [in the case of Ethiopian luminary turned strongman Haile Selassie]. 

Senegal was the first country to sign up to the Rome Statute. So it’s unlikely South Africa will go to that extent. There was a critical situation when the AU met in respect of the indictment [of Kenyan president Uhuru Kenyatta about his alleged role in post-election violence in his country in 2007]. 

I think it’s of grave concern that misconceptions and wrong information are wilfully spread by those speaking for the ANC, and the message they are putting out is that the ICC is targeting Africans. 

There are undeniable problems with the young court regarding its ambit and the identity of those prosecuted. Leading observers here always remark about former US president George W Bush and British prime minister Tony Blair whose troops are believed to have engaged in war crimes in Afghanistan and Iraq.

We ask that too. We call for justice. Human Rights Watch has prepared an indictment against Bush. The court will only work properly if all states support the Rome Statute. I understand the complaint of selective prosecution. But it has to be on a voluntary basis or it conflicts with national sovereignty. 

To be credible, it has to be ratified by all. There is lots of unfortunate rhetoric such as “al-Bashir should rot in jail”. The court has safeguards, checks and balances. The court is there to hold fair trials. Anyone who claims he or she is innocent should face the court and establish that innocence. 

Professor Dugard has also said that if the ANC claims to support Palestinian statehood and self determination, the best and possibly only way to achieve this is by making sure the ICC prosecutes Israeli leaders for the war crimes of building settlements during the Gaza war. He says: ‘In short, the best way to support the Palestinian cause is by improving the credibility of the ICC and not by destroying it at this crucial time when the ICC is deciding whether to prosecute Israelis or not.’ Do you agree? 

The chief prosecutor of the ICC, Fatou Bensouda, is investigating in Colombia and Afghanistan and has been requested to investigate in Palestine. 

By the way, to [address] the criticism that international justice is reserved only for Africans, it’s worth noting that the first international tribune was for Europe, dealing with the former Yugoslavia. [The two international tribunes probed and defined war crimes committed in the former Yugoslavia and Rwanda and laid the foundation for the ICC.] It is African countries themselves that called for investigations – and Uganda was first. 

You can’t chop and change and pull out if friends are being prosecuted. It’s very important that those who commit crimes are brought to justice. 

The Rome Statute says that when a country is unable to prosecute, victims now finally have an institution they can turn to. This was the case in Uganda and the DRC. The only investigations not referred by actors in Africa but by the Security Council were Sudan [for Darfur] and Libya.

International criminal justice is primarily for victims who are crying out for justice. I’ve toured these countries.
One of my last visits was to Nigeria and people there said they wanted justice. It was the Parliament of Kenya that debated and adopted the resolution that they would ask the ICC to investigate.

It is important to separate what people want and what leaders want. 

Leaders in Africa are protecting each other. When South Africa did not help in the arrest and transfer of al-Bashir, it was a slap in the face of victims.

We live in a world where facts and fiction get blurred
In times of uncertainty you need journalism you can trust. For 14 free days, you can have access to a world of in-depth analyses, investigative journalism, top opinions and a range of features. Journalism strengthens democracy. Invest in the future today. Thereafter you will be billed R75 per month. You can cancel anytime and if you cancel within 14 days you won't be billed. 
Subscribe to News24
Voting Booth
The ANC's leadership race is heating up. Who do you think will be elected party president at Nasrec in December?
Please select an option Oops! Something went wrong, please try again later.
Nkosazana Dlamini-Zuma has got it in the bag
7% - 363 votes
I foresee a second term for Cyril Ramaphosa
82% - 4467 votes
Don’t discount a Zweli Mkhize win
12% - 631 votes
Rand - Dollar
Rand - Pound
Rand - Euro
Rand - Aus dollar
Rand - Yen
Top 40
All Share
Resource 10
Industrial 25
Financial 15
All JSE data delayed by at least 15 minutes Iress logo
Editorial feedback and complaints

Contact the public editor with feedback for our journalists, complaints, queries or suggestions about articles on News24.