In this piece first published in From the Thornveld, University of KwaZulu-Natal scholar Christopher Merrett condemns what he terms as “one of post-apartheid South Africa’s greater scandals” where instead of placing Sudanese President Omar al-Bashir under arrest and handing him to the International Criminal Court (ICC) for trial, the government instead facilitated his quick exit. Legal advisor to the government, Dire Tladi, told the ICC that Sudan is not a signatory to the Rome Statute, meaning that South Africa was not obliged to arrest its sitting head of state. South Africa has submitted to withdraw from the ICC, but the bid has since hit a wall after a court declared it null. Merrett’s piece highlights an ongoing divisive debate about the ICC and its relationship with the African continent. Despite 34 African nations voluntarily signing up to the court’s jurisdiction – in recent years, a handful of governments have decided their idea of international justice is incompatible with that set out in the Rome Statute. Most recently, the African Union has called for mass withdrawal from the Statute. More insights on this debate can be found here: http://iccforum.com/africa
by Christopher Merrett
HULLABALOO: it’s a word often applied to South African politics – and with good reason. In the year in which Jacob Zuma should relinquish the presidency of the African National Congress (and, much of the country desperately hopes, the highest office in the land), the nation continues to sink under the weight of corruption, racketeering, state capture, violence and increasing authoritarianism. But all of this obscures one of post-apartheid South Africa’s greater scandals.
In June 2015 the president of Sudan, Omar al-Bashir, indicted by the International Criminal Court (ICC) during 2009 and 2010 on two counts of war crimes, three of genocide and five of crimes against humanity all relating to Darfur, visited Pretoria to attend an African Union (AU) meeting. As a signatory to the Rome Statute of 1998 South Africa should have placed him under arrest and handed him over for trial, an obligation pointed out to the government while al-Bashir was still in the country. Instead, it facilitated his quick exit despite of the issue of a warrant for his arrest, arguing that as an African head of state on continental business he was immune. Indeed, it has been reported that he was personally assured of immunity by South Africa’s Number One.
The ICC came into being in 2002 to deal, somewhat confusingly, with genocide, crimes against humanity, war crimes, and aggression. Its main purpose is to discourage a tendency in the modern world for states not to fight one another, but persecute their own populations behind the legalism of sovereignty. There are 139 signatories, although only 124 states are full parties, to the Rome Statute; mainly in the Americas, Europe, Australasia and parts of Africa. Notable absentees are China, a serial abuser of human rights, and the USA, landlord of Guantánamo Bay and upholder of the death penalty; and a motley collection of reprobate nations such as Israel, Iraq, Libya and Yemen. The Rome Statute has now been repudiated by Russia.
The ICC acts only where countries are unable or unwilling to investigate and prosecute individuals for themselves; and its jurisdiction runs no further than signatory states unless authorised by the United Nations Security Council. There is no statute of limitations. The ICC has effectively institutionalised the successful ad hoc tribunals set up to deal with war crimes committed in Rwanda, Sierra Leone and the former Yugoslavia. South Africa, whose white rulers famously failed to endorse the 1948 Universal Declaration of Human Rights, signed up to the Rome Statute along with other progressive nations.
In the case of al-Bashir, the South African Constitutional Court subsequently ruled that the government had ignored both international obligations and its own law, which embraces the provisions of the Rome Statute. In a typical fit of umbrage the ANC declared that it would withdraw from the Statute (joined by Burundi, Uganda and the Gambia, although the last having reverted to a state of democracy may now be in the process of reversing that decision). South African withdrawal has subsequently been revoked because, as with an arrogant British government forcing through Brexit, the courts have declared that it lies outside executive competence and requires parliamentary approval. This is merely a matter of time and technicality because ANC members of parliament as beneficiaries of proportional representation are the closest human life form to a field of sheep. Even abstentions are viewed with suspicion (remember Ben Turok?) and any semblance of independent thought is regarded as high treason. A repeal bill is currently in process.
Here we have a further example of the loss of a sense of history and moral compass on the part of the ANC. This is the party that once occupied the high ground and called for international solidarity in the struggle for human rights against the crime called apartheid. Shamelessly, it now repudiates processes that symbolise atonement for failure to prevent genocides such as Rwanda’s – in which at least 800 000 people died in ninety days in 1994. Instead, Deputy Justice Minister John Jeffery (incidentally a short-term state of emergency detainee in Pietermaritzburg in 1986) parades implausible red herrings: arresting al-Bashir would have amounted to declaring war on Sudan; and the ICC has lost direction and been influenced by outside (presumably ‘Western’) agendas. Nor should it be forgotten that South Africa is prone to periodic episodes of xenophobia that lead to the deaths of scores of fellow Africans. Any sense of pan-Africanism, or gratitude for apartheid-era solidarity, has long since evaporated, if indeed they ever existed.
The ANC routinely reverts to bombast and populist grandstanding to cover up embarrassment. The ICC has done a good, if ponderous, job in calling to account the tyrants of Africa with blood on their hands. The AU has achieved virtually nothing in spite of windy rhetoric and expensive pomp and ceremony, most recently orchestrated by Zuma’s prematurely anointed successor, Nkosazana Dlamini-Zuma. South Africa sticks to an indefensible attitude that sitting African heads of state, many of them devoid of democratic mandate and presidents-for-life, are immune from international justice. And in the case of al-Bashir Sudan is a client of China, towards which South Africa routinely defers as shown over many years in the case of the Dalai Lama.
Kow-tow has resulted in egg on face for both the ANC and the South African government. Breaking the law and barking up the wrong procedural tree led not only to forced revocation of the withdrawal notice, but the humiliation on 7 April of being called to account by the ICC for non-compliance with international obligations.
It follows that a party which has lost all scruple in its domestic dealings and become a corrupt racketeering organisation with little to offer beyond empty rhetoric should align itself with the reprehensible in global affairs. Nor is this issue likely to evaporate as the ANC would surely wish. The withdrawal process will not be fast (matters relating to international treaties seldom are) and the stick-waving al-Bashir is due back in South Africa in December for, with particular irony, a China-Africa summit. If he is allowed into South Africa for a second time, the spectre and memory of innocent victims of crimes against humanity in Darfur (and elsewhere in Africa such as Rwanda and the DRC) should be invoked to the shame of the ANC and, by reflection and extension, South Africa too.
Featured Photo Source: Reuters via Al Jazeera