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.