F

CityPress - - Voices & Careers -

or some, the flight of Pres­i­dent Omar alBashir from a South African mil­i­tary air­field last week was another blow to the pres­tige of the In­ter­na­tional Crim­i­nal Court (ICC), which has in­dicted the Su­danese leader for mass atroc­i­ties in Dar­fur. Al-Bashir’s ig­no­min­ious de­par­ture came even as a judge was hear­ing ar­gu­ments on whether the gov­ern­ment was legally obliged to ar­rest him and hand him over to the ICC.

But take a deeper look. First, the world wit­nessed the pres­i­dent of a sov­er­eign state flee­ing like a com­mon crim­i­nal – surely not his pre­ferred man­ner to leave an African Union (AU) sum­mit. If al-Bashir at­tended this sum­mit in the hopes of weak­en­ing the re­stric­tions on his travel, he seems to have failed.

The le­gal dust-up – and the court’s con­fir­ma­tion of the gov­ern­ment’s duty to ar­rest an ICC sus­pect, even a head of state – does not au­gur well for fu­ture trips by al-Bashir to Rome Statute mem­ber states.

Sec­ond, while al-Bashir has once again es­caped the ICC’s clutches – for now – the South African gov­ern­ment was forced to go to some un­com­fort­able lengths to make that hap­pen – in­clud­ing seek­ing to per­suade its own judges that al-Bashir was not sub­ject to ar­rest, ma­noeu­vring the Su­danese pres­i­dent’s plane from a civil­ian to a mil­i­tary air­field in what seemed to some an ef­fort to lay the ground for evad­ing an un­favourable ju­di­cial find­ing, then en­dur­ing the con­dem­na­tion of a court that found it had acted in­con­sis­tently with its own Con­sti­tu­tion.

Even from the per­spec­tive of a gov­ern­ment that has with­drawn its once staunch sup­port for in­ter­na­tional jus­tice, this se­ries of side­steps is some­what em­bar­rass­ing.

Third, in up­hold­ing the ap­pli­ca­tion of South Africa im­ple­ment­ing ICC leg­is­la­tion in this case over a gov­ern­ment at­tempt to put po­lit­i­cal con­sid­er­a­tions first, the le­gal ac­tion brought by lo­cal hu­man rights groups – and prop­erly en­acted by the courts – has pro­vided strong af­fir­ma­tion of the rule of law in South Africa.

Hav­ing first de­cided to ad­here to the AU res­o­lu­tion and in­vite al-Bashir to at­tend the AU sum­mit, gov­ern­ment must now ex­plain to its own judges and peo­ple why it vi­o­lated a court or­der – and its Con­sti­tu­tion – by al­low­ing his de­par­ture. In a coun­try whose tran­si­tion from apartheid to democ­racy is rooted in con­sti­tu­tion­al­ism, this is no small mat­ter.

In­ter­na­tion­ally too, South Africa has dam­aged its as­pi­ra­tions to be seen as a lead­ing light in the de­vel­op­ing world. No mat­ter that China, Rus­sia and In­dia will likely ap­plaud its stance, its high es­ti­ma­tion in the eyes of coun­tries in the Global North (which it craves) will be ir­repara­bly dam­aged.

In short, South Africa’s po­lit­i­cal lead­ers have si­mul­ta­ne­ously dis­cred­ited them­selves and height­ened at­ten­tion to the dis­junc­ture be­tween their short-term po­lit­i­cal in­ter­ests and what their own law re­quires.

Those of­fi­cials who made the de­ci­sion to defy the court or­der ban­ning al-Bashir’s de­par­ture now face the risk of be­ing found in con­tempt of court. And if their aim was to unite the con­ti­nent be­hind a wave of an­tiICC sen­ti­ment, their ef­fort fell short, as shown by the state­ments of se­nior of­fi­cials of Malawi, Sene­gal and Tan­za­nia in the run-up to the AU sum­mit en­dors­ing the ICC or call­ing for al-Bashir to be ar­rested.

All this makes it un­likely that al-Bashir will be re­turn­ing to South Africa in the near fu­ture. Kenya is also off lim­its, since its high court is­sued a war­rant for al-Bashir’s ar­rest in 2011 fol­low­ing a sim­i­lar le­gal chal­lenge brought by a lo­cal hu­man rights group af­ter Kenya’s then pres­i­dent al­lowed al-Bashir to visit. It is not at all clear if other self-re­spect­ing demo­cratic gov­ern­ments will want the headache of public con­tro­versy or ju­di­cial con­dem­na­tion that in­evitably comes with the visit of a head of state who is wanted by the ICC.

In that re­gard, it is worth remembering what al-Bashir is wanted for. He is charged with be­ing re­spon­si­ble for death and dis­place­ment on a mas­sive scale in Dar­fur, in­clud­ing in­ten­tion­ally launch­ing at­tacks on civil­ian pop­u­la­tions and per­pe­trat­ing geno­cide against the Fur, Masalit and Zaghawa eth­nic groups. The vic­tims of his crimes were black Africans.

Any­one who doubts al-Bashir would re­ceive a fair trial at the ICC need only con­sult the court’s record. To date, it has con­victed two peo­ple and ac­quit­ted one mil­i­tant leader (from the Demo­cratic Re­pub­lic of Congo) at trial. In a num­ber of other cases, the judges have forced the court’s pros­e­cu­tor to mod­ify or with­draw charges against par­tic­u­lar de­fen­dants for lack of suf­fi­cient ev­i­dence. Last De­cem­ber, the pros­e­cu­tor her­self agreed to with­draw charges against Kenya’s pres­i­dent when, in part due to of­fi­cial ob­struc­tion, her of­fice ac­knowl­edged that it could not amass the ev­i­dence needed to prove guilt be­yond rea­son­able doubt.

For those with long enough mem­o­ries, al-Bashir’s morn­ing flight brought back the mem­ory of another po­lit­i­cal leader who found that, even af­ter he evaded a court rul­ing, the world was no longer pre­pared to turn a blind eye to the crimes of the most pow­er­ful. In March 2000, af­ter the UK’s high­est court ruled that

Newspapers in English

Newspapers from South Africa

© PressReader. All rights reserved.