CityPress - - Voices and Careers - N deal­ing with the case of a war­rant is­sued for the ar­rest of Su­dan’s pres­i­dent, Omar alBashir, South Africa’s gov­ern­ment faced a cruel co­nun­drum, caught be­tween its con­ti­nen­tal obli­ga­tions to the African Union (AU) – which re­solved that In­ter­na­tional Cri

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.

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.

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.

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.

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.

Navi Pil­lay

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