SA not off the hook

Even if the coun­try de­cides to with­draw from the ICC, it will still face the con­se­quences of fail­ing to ar­rest Pres­i­dent Omar al-Bashir last year, writes Alices­tine Oc­to­ber

CityPress - - News -

South Africa would not be ab­solved from deal­ing with the con­se­quences fol­low­ing its de­ci­sion not to ar­rest Su­dan’s Pres­i­dent Omar al-Bashir, even if it was to act on its threat to with­draw from the In­ter­na­tional Crim­i­nal Court (ICC), said ICC chief prose­cu­tor Fa­tou Ben­souda in an in­ter­view from The Hague, Nether­lands.

Ben­souda ac­knowl­edged that the de­ci­sion to with­draw from the ICC was a sov­er­eign state’s pre­rog­a­tive. How­ever, she ar­gued that while African states should be com­mended for tak­ing the lead in opt­ing for the rule of law, they should also take their obli­ga­tions to the Rome Statute se­ri­ously.

She said the act of with­draw­ing from the sys­tem would not ab­solve South Africa from its re­spon­si­bil­ity be­cause pre-ex­ist­ing pro­ceed­ings would con­tinue.

“All the ac­tions and the le­gal sta­tus that arose from them be­ing a state party will con­tinue … The with­drawal can only take ef­fect one year af­ter they have de­cided to with­draw.”

The ICC is gov­erned by an Assem­bly of States Par­ties, which is made up of the states that are party to the Rome Statute. As of March this year, 124 states were par­ties to the Statute of the Court, in­clud­ing all South Amer­i­can coun­tries, nearly all of Europe, most of Ocea­nia and roughly half of Africa (34 states). At least 31 more coun­tries have signed but not rat­i­fied the Rome Statute.

The law of treaties obliges these states to re­frain from “acts which would de­feat the ob­ject and pur­pose” of the treaty un­til they de­clare they do not in­tend to be­come a party to the treaty. At least 41 UN mem­ber states, in­clud­ing China and In­dia, have nei­ther signed nor ac­ceded to the Rome Statute.

So far, at least three sig­na­tory states – Is­rael, Su­dan and the US – have in­formed the UN sec­re­tary­gen­eral that they no longer in­tend to be­come states par­ties and, as such, have no le­gal obli­ga­tions aris­ing from their for­mer rep­re­sen­ta­tives’ sig­na­ture of the statute.

“We sincerely hope we do not get to the stage where South Africa with­draws from the Rome Statute,” she said, adding that South Africa was re­garded as an im­por­tant state party.

“We look for­ward to work­ing with South Africa to make sure the rule of law in terms of in­ter­na­tional law is main­tained, es­pe­cially in a coun­try like South Africa.”

In the Al-Bashir case, there was an obli­ga­tion on South Africa’s part to ar­rest him.

“This obli­ga­tion is a se­ri­ous one that trumps any other,” she said.

Al-Bashir man­aged to es­cape ar­rest when he vis­ited South Africa last year. The Supreme Court of Ap­peal ear­lier this year found that govern­ment had acted un­law­fully by fail­ing to ar­rest him. He has been charged with al­leged hu­man rights abuses, geno­cide and war crimes in Su­dan’s Dar­fur re­gion. The first war­rant of ar­rest was is­sued against him in March 2009 and a sec­ond one was is­sued in 2010 fol­low­ing a re­quest by the UN Se­cu­rity Coun­cil.

Ben­souda said the court did not have its own unit to en­sure en­force­ment and was de­pen­dent on the po­lice of all the states par­ties to ar­rest sus­pects and hand them over to the ICC.

“So there is still pos­si­bil­ity and hope that even­tu­ally Al-Bashir will find him­self be­fore the ICC,” she said.

How­ever, Ben­souda hailed South Africa’s Supreme Court of Ap­peal de­ci­sion against Pres­i­dent Ja­cob Zuma’s ad­min­is­tra­tion, say­ing it was an im­por­tant one re­gard­ing the clar­i­fi­ca­tion of the states par­ties’ obli­ga­tions. “It in ef­fect means al-Bashir can­not set foot in South Africa again. We hope this sends a mes­sage to other state par­ties that those obli­ga­tions should be re­spected – they are obliged to en­force the court’s de­ci­sions and ar­rest any fugi­tive within their bor­ders.” South Africa was obliged to up­date the court on the lat­est de­vel­op­ments re­gard­ing the Supreme Court of Ap­peal de­ci­sion and ex­plain why it had not ar­rested Al-Bashir. This needed to be done as soon as pos­si­ble, she said. “There may be pro­ceed­ings in­sti­tuted against South Africa that could mean South Africa could be found to be non­com­pli­ant.” The ICC has been ac­cused, par­tic­u­larly by African lead­ers, of bias and of be­ing a tool of Western im­pe­ri­al­ism – only pun­ish­ing lead­ers from small, weak states, while ig­nor­ing crimes com­mit­ted by richer and more pow­er­ful states. The pros­e­cu­tion of Kenya’s Deputy Pres­i­dent, Wil­liam Ruto, and Pres­i­dent Uhuru Keny­atta (both charged be­fore com­ing into of­fice) led to the Kenyan Par­lia­ment pass­ing a mo­tion calling for Kenya’s with­drawal from the ICC, and the coun­try called on the other 34 African states party to the ICC to with­draw their sup­port, an is­sue that was dis­cussed at a spe­cial African Union sum­mit in Oc­to­ber 2013. The sum­mit did not en­dorse the with­drawal pro­posal, but con­cluded that serv­ing heads of state should not be put on trial and that the Kenyan cases should be de­ferred. Ben­souda said the ar­gu­ment that African lead­ers were tar­geted was a com­plete mis­con­cep­tion and was “based on wrong facts”. The rea­son eight of the nine cases cur­rently on the court roll in­volved African states was be­cause African states were tak­ing a lead­er­ship role in ap­proach­ing the court where there was an un­will­ing­ness to pros­e­cute. “Five of the eight Africa cases were pur­sued at the re­quest of African states,” said Ben­souda. “That is how we came to be in Africa. It is not by de­sign and it is not be­cause the prose­cu­tor de­cided now we are only go­ing to fo­cus on Africa … far from it.” Ben­souda, her­self an African and for­mer min­is­ter of jus­tice in Gam­bia, has been work­ing at the ICC since 2004. In 2012, she was ap­pointed chief prose­cu­tor. Seem­ingly used to crit­i­cism, she said: “I al­ways say Africa should be com­mended be­cause it is choos­ing the rule of law in­stead of re­vert­ing to con­flict. We are also work­ing out­side of Africa. Re­cently, we also opened an in­ves­ti­ga­tion into Ge­or­gia.” This in­ves­ti­ga­tion re­lates to the con­flict in South Os­se­tia, a break­away re­gion of Ge­or­gia where 113 civil­ians were killed. Other pre­lim­i­nary in­ves­ti­ga­tions are un­der way in the Ukraine, Colom­bia, Pales­tine, Afghanistan and into the con­duct of UK forces in Iraq. De­spite crit­i­cism against the court, which was es­tab­lished in 1998, its cred­i­bil­ity re­mained in­tact, Ben­souda said. “The court is do­ing what it is sup­posed to be do­ing. As a court, we do pre­lim­i­nary in­ves­ti­ga­tions and do them in the most in­de­pen­dent and im­par­tial way. “We can­not help when peo­ple politi­cise the ac­tions of the court for their own po­lit­i­cal ends,” she said. Oc­to­ber was Me­dia24’s jour­nal­ist in res­i­dence at ZuidAfrikahuis in Am­s­ter­dam, Nether­lands, in March and April

LAST STOP The In­ter­na­tional Crim­i­nal Court head­quar­ters in The Hague, Nether­lands

Su­dan’s Pres­i­dent Omar al-Bashir (top) and Pres­i­dent Ja­cob Zuma

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