SA did the right thing by al-Bashir

The Su­danese pres­i­dent’s hur­ried exit from SA has be­come a po­lit­i­cal hot potato, but gov­ern­ment took the right stance, writes

CityPress - - Voices - – Rap­port

1Omar al-Bashir’s visit to South Africa last week­end was his 11th trip to a mem­ber state of the In­ter­na­tional Crim­i­nal Court (ICC) since his in­dict­ment in 2009. But none of his vis­its has pro­duced as much drama be­cause South Africa is sup­posed to be dif­fer­ent, and the world’s ex­pec­ta­tions of South Africa are, if any­thing, higher than what South Africa ex­pects of it­self.

2Never be­fore has a head of state been ar­rested while trav­el­ling abroad, un­less you count Mary Queen of Scots in 1568, and she had prob­a­bly ab­di­cated by then. It would have been a rad­i­cal step for South Africa to ar­rest al-Bashir and, quite pos­si­bly, illegal.

3All things con­sid­ered, South Africa’s course of ac­tion was cor­rect, so let’s con­sider some of the things that haven’t been con­sid­ered in the con­tro­versy.

First, an ar­rest war­rant must be do­mes­ti­cated. Un­der South African law, there is noth­ing spe­cial about ICC war­rants – they must be do­mes­ti­cated, like any other war­rant from another ju­ris­dic­tion, and all the same tests and due pro­cesses must be fol­lowed. (It makes no sense for the bar to be higher to ex­tra­dite a petty shoplifter to Botswana than to send a head of state to the Nether­lands for geno­cide.)

I don’t know if the Na­tional Pros­e­cut­ing Au­thor­ity (NPA) ever re­ceived a for­mal re­quest from the ICC as re­quired and, if it did, why the NPA re­fused to do­mes­ti­cate it. But as far as I know, pros­e­cu­tors have dis­cre­tion in these mat­ters.

For one thing, South African pros­e­cu­tors are prob­a­bly aware there is good rea­son to be­lieve the al-Bashir war­rant would not have sur­vived the tests re­quired un­der South African law. The le­gal/ tech­ni­cal in­com­pe­tence of the ICC in­dict­ment shocked even the sup­port­ers of this court. It was as if the pros­e­cu­tor wanted to in­dict a head of state to prove the court’s rel­e­vance and power – the per­son never imag­ined al-Bashir would be ar­rested, much less tried.

Sec­ond, there is a per­sua­sive ar­gu­ment that the ICC con­tra­vened its own Rome Statute in ask­ing South Africa to ar­rest al-Bashir.

While Ar­ti­cle 27 of the statute makes it clear that the of­fi­cial ca­pac­ity as head of state does not con­fer im­mu­nity from ICC ju­ris­dic­tion, Ar­ti­cle 98 says the ICC may not re­quest ex­tra­di­tion by a state if do­ing so would con­tra­vene its other obli­ga­tions un­der in­ter­na­tional law. This was de­lib­er­ate, to avoid putting states in the sit­u­a­tion the ICC and its Euro­pean al­lies put South Africa in.

Third, the doc­trine of head of state im­mu­nity is one of the most an­cient in cus­tom­ary in­ter­na­tional law and has re­peat­edly been up­held by the courts.

Vi­o­lat­ing it is highly illegal and car­ries the risk of dan­ger­ous in­ter­state ten­sions (interfering with the per­son of the head of state is tra­di­tion­ally in­ter­preted as an act of war – be­sides, South Africa has forces sta­tioned in Su­dan.) It is far from clear that the high court even had the power to or­der al-Bashir’s war­rant­less ar­rest.

The big point that has be­come lost in all the emo­tion is that due process re­ally mat­ters. This is what makes a jus­tice sys­tem just and the el­e­ments of due process must be de­fended most vig­or­ously pre­cisely when they are most in­con­ve­nient, or when they stand in the way of sat­is­fy­ing public emo­tion – no mat­ter how well founded that emo­tion is.

There are strong points in terms of rule of law on all sides here. Those who equate South Africa’s ap­proach with “weak­ness”, “lack of prin­ci­ple”, “wan­ton dis­re­gard for the rule of law/Con­sti­tu­tion” are en­gag­ing in dem­a­goguery with a racial un­der­tone in an en­vi­ron­ment where so much com­men­tary equates “let­ting al-Bashir go” with “choos­ing Africa” and “in­dif­fer­ence to geno­cide and rule of law” – and “ar­rest al-Bashir” with “choos­ing the West” and “up­hold­ing South Africa’s ideals”.

Firstly, it is not even true that Africa is united in sup­port of al-Bashir be­cause as many African coun­tries have de­nied him en­try as have al­lowed him to visit.

For some rea­son, this ele­men­tary prin­ci­ple of jus­tice fades into the back­ground. But it shouldn’t, be­cause jus­tice has to be seen to be fair and that some­times means the guilty will walk free.

It is very odd in these de­bates for ad­vo­cates of jus­tice to call, ex­plic­itly or im­plic­itly, for in­con­ve­nient rules of due process and ev­i­dence to be re­duced or set aside – this is al­ways done in the name of the vic­tims. This is an abuse of their suf­fer­ing that should be dis­pensed with.

So, at a min­i­mum, there are many un­set­tled le­gal is­sues here. The claims for and against are the­o­ries from lawyers; they have never been tested in court. Each ar­gu­ment would be sub­ject to nu­mer­ous ap­peals. Any­one who pre­tends there is cer­tainty about what should hap­pen is not be­ing hon­est. It could take months and pos­si­bly years of pro­ceed­ings to reach a fi­nal rul­ing on whether al-Bashir should be sent to The Hague. How would it work in prac­tice? Would he be al­lowed to hold Cab­i­net meet­ings in prison? The ab­sur­di­ties mul­ti­ply when you think of what it would mean for South Africa – years of diplo­matic ten­sion and the global spotlight on our le­gal sys­tem.

So, the gov­ern­ment was wise to de­cide that the risk of dam­age to South Africa’s na­tional in­ter­ests was too great to hold a serv­ing head of state in de­ten­tion for the time that would be re­quired to sort out these com­plex is­sues in the courts.

South Africans should also take note of this trend be­cause this was not the first time the South­ern African Lit­i­ga­tion Cen­tre (SALC) and Jus­tice Hans Fabricius have col­lab­o­rated to ex­pand the scope of South Africa’s obli­ga­tions un­der the ICC Im­ple­men­ta­tion Act, and it won’t be the last.

Last year, the Con­sti­tu­tional Court up­held Fabricius’ rul­ing in a case brought by the SALC against the SA Po­lice Ser­vice and the NPA, claim­ing that the act re­quired them to in­ves­ti­gate and pros­e­cute claims of tor­ture in Zim­babwe, be­cause al­leged per­pe­tra­tors “regularly trav­elled to South Africa”. Zim­babwe is not an ICC mem­ber and the ICC has no open in­ves­ti­ga­tion there.

In ef­fect, this means the courts are com­mit­ting South Africa to in­ves­ti­gate and pros­e­cute crimes any­where in the world, pro­vided a per­pe­tra­tor who has or might travel to South Africa can be iden­ti­fied. It is only a mat­ter of time be­fore ac­tivists seize on this to com­pel South Africa to seek the ar­rest of Chi­nese of­fi­cials over crimes in Ti­bet, Euro­peans for of­fences in Libya, Amer­i­cans over the Mid­dle East and Saudi Ara­bi­ans over the bomb­ing of Ye­men.

It’s fun to toy around with black pres­i­dents in funny white tur­bans, but high-minded prin­ci­ples start to col­lapse when faced with such re­al­i­ties.

4This brings us to the ex­trale­gal is­sues about the ICC’s le­git­i­macy. If the im­age of the hun­dreds of thou­sands of vic­tims drives the emo­tions in favour of al-Bashir’s ar­rest, le­gal nu­ance and due process be damned, it is the re­al­ity that the ICC has only in­dicted Africans that is driv­ing the emo­tion against it, in Africa in par­tic­u­lar.

The ICC has been la­belled racist be­cause it has only tar­geted Africans. The truth is that it only tar­gets Africans be­cause it has no one else to tar­get. It has no choice but to have a “dis­parate im­pact” on Africa. Ev­ery­one else opted out. Look at a map of ICC mem­bers: it is Europe, South Amer­ica and half of Africa. No Mid­dle East. No Asia. No Rus­sia. No US.

Some coun­tries opted out be­cause they knew they had rea­son to fear pros­e­cu­tion. But most did not sign on be­cause they wor­ried that a court with such vast pow­ers would be un­ac­count­able and highly vul­ner­a­ble to po­lit­i­cal ma­nip­u­la­tion by pres­sure groups and other states.

The track record of the ICC has done noth­ing to al­lay these fears. In­deed, it has con­firmed them.

Even the of­ten-re­peated claim that the ICC can­not be seen as bi­ased against Africa be­cause many cases have been re­ferred by African states them­selves is a weak­ness – vir­tu­ally all these have been about sidelin­ing in­ter­nal ri­vals and try­ing to use the court to set­tle po­lit­i­cal scores.

That is not why it was cre­ated, but the court is so dis­tant from events, so re­liant on hearsay, that it has no prac­ti­cal means to pro­tect it­self from such ma­nip­u­la­tions. There is, there­fore, lit­tle like­li­hood that any new states will sign on and no chance that the ICC will ever be any­thing other than a court in Europe to judge Africa.

As such, the ICC has be­come an ob­jec­tive im­ped­i­ment to the cause of uni­ver­sal ju­ris­dic­tion for geno­cide and crimes against hu­man­ity.

This does not mean the vic­tims don’t de­serve jus­tice. It means the ICC is in­ca­pable of ren­der­ing jus­tice to them. The ANC ex­ec­u­tive com­mit­tee’s state­ment that “the ICC is no longer use­ful for the pur­poses for which it was in­tended” was prin­ci­pled, timely and cor­rect.

This is very dif­fer­ent from op­pos­ing uni­ver­sal ju­ris­dic­tion for geno­cide and say­ing that crimes against hu­man­ity should be dis­carded. Who could be against that? In­deed, it should be strength­ened, and made uni­ver­sal by rene­go­ti­at­ing the Rome Statute in a way that would al­low it to at­tract the sup­port of the states that have spurned it.

South Africa is well placed to take the lead in re­plac­ing the ICC with some­thing bet­ter. This will en­tail com­pro­mises. But jus­tice that is par­tial and politi­cised is no jus­tice at all.

If this doesn’t hap­pen, the ar­ti­fi­cial con­fronta­tion be­tween the West and Africa will con­tinue to deepen, im­prov­ing progress in terms of uni­ver­sal norms for jus­tice will be frozen, and the vic­tims will re­main what they were at the out­set: in­vis­i­ble and for­got­ten, ex­cept when they can be used to score points in a de­bate.

South Africa did not be­tray the rule of law in its han­dling of the al-Bashir episode, much less its found­ing ideals. It was the New South Africa, af­ter all, that ar­tic­u­lated the doc­trine that con­di­tional im­mu­nity for so-called po­lit­i­cal crimes was not a ne­ces­sity, but a virtue. Let­ting al-Bashir go home to face the judge­ment of history in his own time was a South African move to the core. De Lorenzo works as an an­a­lyst in Rwanda and is a vis­it­ing fel­low at the Amer­i­can En­ter­prise In­sti­tute. He is also a vis­it­ing fel­low at the Stern School of

Busi­ness, New York Univer­sity



The plane of Su­danese pres­i­dent Omar al-Bashir takes off from Waterk­loof Air Force Base just be­fore noon on Mon­day

Thomas Schaefer, VWSA’s man­ag­ing di­rec­tor


Ru­dolf Straueli, the Lions’ CEO


ABOVE THE LAW? Omar al-Bashir at the AU Sum­mit in Joburg re­cently. His pres­ence in SA has sparked heated dis­cus­sions about SA’s le­gal obli­ga­tions

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