How Jacob Zuma failed the victims of Darfur

2015-08-05 09:10

Last month the High Court of South Africa issued an interim order to bar Sudanese president, Omar al-Bashir, from leaving the country.

Al Bashir had travelled to Johannesburg for the African Union Summit, when the International Criminal Court (ICC) called upon South African authorities to arrest the Sudanese leader.

Omar al-Bashir was accused of war crimes, crimes against humanity and genocide in 2009 by the International Criminal Court (ICC) for launching a brutal military campaign against armed groups in Darfur. According to United Nations estimates, the conflict led to the deaths of approximately 300,000 people and resulted in the displacement of millions. During the conflict, entire villages were wiped out, thousands were tortured and raped and hundreds of thousands murdered.

The surprising interim order caused a stir in the African National Congress with many of the leaders calling upon President Jacob Zuma to challenge the court decision. The South African leadership had suddenly found itself between a rock and a hard place. On one hand the government was required to fulfill a promise made to its African counterparts at the AU summit in 2013, not to cooperate with the ICC when an African head of state is accused by the Court; And on the other hand it was required to meet its international legal obligations and commitment to the Rome Statute by arresting the Sudanese leader upon his visit.However, later it emerged that Omar al-Bashir was allowed to leave Johannesburg for his home country, Sudan.

The South African government’s foreign policy goal of commitment to Pan-Africanism and harnessing African political unity, has guided its decision to support Al-Bashir in his fight against the ICC. However, in the process Zuma has managed to undermine the country’s highest court and as a result the South African constitution.

This week the Democratic Alliance stated that the party plans to issue a motion of impeachment against President Jacob Zuma for allowing his Sudanese counterpart to leave the country in defiance of the court order. However at this stage, it is still unclear whether there will be serious domestic legal consequences for the government. Although, what is clear is that the South African government has failed the victims of Darfur and robbed them of the justice they deserve by allowing al-Bashir to leave the country. In doing so, President Zuma has also undermined South Africa’s image as a good international citizen and simultaneously hurt the legitimacy of the International Criminal Court (ICC).

After the ICC issued an arrest warrant in 2009 for the arrest of al-Bashir, the Sudanese government launched a series of vicious verbal attacks on the court to undermine its image, with the Sudanese U.N. envoy Abdalmahmoud Abdalhaleem going as far as calling the previous Chief Prosecutor of the ICC, Luis Moreno Ocampo, a “terrorist”, among other accusations and insults. Since the arrest warrant, Omar al-Bashir has been careful to avoid travelling to countries that have ratified the Rome Statute in fear of being arrested.However, the Sudanese president was able to breathe a sigh of relief in October 2013 when the African Union reached a resolution to cease cooperation with the ICC and refuse to hand over African sitting heads of state who are wanted by the Court because the Union felt the court selectively targeted Africans.

This is not the first time the Court has been criticized for its focus on Africa. The International Criminal Court has been consistently accused of “selective justice” (all the cases currently being processed by the Court are from Africa). In a continent that is haunted to this day by the legacy of colonialism, it is fair to say that the ICC faces a serious legitimacy issue.

However, while it is easy to sympathize with most of the accusations and complaints against the ICC, it should be strongly noted that most of them are completely baseless. Other than Darfur and Libya, the remaining cases currently being processed by the Court were brought before the Prosecutor by the member countries themselves. The ICC has not yet opened cases outside of Africa because where serious crimes outside the continent have occurred, the Court has had no jurisdiction there (although that may be about to change with the case of Palestine and Afghanistan being brought forward in recent months).Take the US war in Iraq for example; the ICC was unable to prosecute American generals or combatants for alleged war crimes, crimes against humanity or genocide because neither Iraq nor the United States has ratified the Rome Statute.

The inability of the media to communicate these technical limitations to the public, combined with the political campaigns waged against the Court, have led to the flawed perception that the ICC is biased; a perception that President Jacob Zuma has capitalized on to further undermine the Court.

By undermining the ICC, President Zuma has allowed political interests to take precedence over justice and human rights. In allowing al-Bashir to return home, the South African government has denied justice to his victims, who deserved to see him at the prosecution podium at The Hague before the panel of international Judges answering for his crimes.

Geoffrey Robertson put it perfectly, when he said “diplomacy is the anti-thesis of justice: it brokers trade-offs which always allow oppressors to escape”, and thanks to the South African government, we have a case in point.

By Siamak Sam Loni

Siamak Sam Loni is an ex-officio member of the Leadership Council of the UN Sustainable Development Solutions Network (UN SDSN) and the Global Coordinator of SDSN Youth. 

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