D-Day is looming for the country
More cartoons online at Angela Mudukuti is an international criminal justice lawyer
NEXT week, on Tuesday, the International Criminal Court (ICC) will announce its ruling on whether South Africa’s failure to arrest President Omar al-Bashir constitutes an act of non-compliance. In reality, findings of non-compliance have had little impact on other nations, but in South Africa’s case, could the outcome determine whether the country withdraws from the Rome Statute?
On April 7 this year, South Africa was provided with a crucial opportunity to explain its actions before the ICC judges – an opportunity to justify the unjustifiable, some would say. The ICC’s pre-trial chamber must ascertain whether South Africa failed to comply with its obligations, and if so, whether a formal finding of non-compliance and a referral to the Assembly of States Parties (ASP) and/ or the UN Security Council (UNSC) is warranted.
The Bashir saga marks the point of no return on the road that has brought South Africa before the ICC. Bashir’s June 2015 visit triggered South Africa’s domestic and international law duty to arrest him pursuant to an ICC arrest warrant. South Africa’s status as a member of the ICC’s founding treaty, the Rome Statute, combined with the fact that South Africa domesticated the statute, provided a basis for his arrest. Unfortunately, the government failed to comply with its duties.
Failure to arrest Bashir, who is wanted for genocide, war crimes and crimes against humanity, was successfully challenged in court by the Southern Africa Litigation Centre. The high court and the Supreme Court of Appeal found that failure to arrest Bashir was unlawful. Despite both these rulings, at its hearing at the ICC on April 7, the government justified its actions by stating that there is no international law duty to arrest Bashir, and thus no cause to refer South Africa to the ASP or UNSC.
Whether the ICC judges will find this argument convincing remains to be seen.
Should the ICC rule against South Africa, it would not be the first finding of non-compliance.
A number of states – some on more than one occasion – have been found to be non-compliant. Djibouti, Uganda, the Democratic Republic of Congo, Kenya, Malawi, and Nigeria have all been referred to the ASP and/or UNSC for Bashir-related issues.
There are several problems with this picture. Nations failing to fulfil their obligations as members of the Rome Statute is one problem, but the fact that findings of non-compliance have little or no real consequence is quite another. The ASP and UNSC are mandated to act in this regard, but to date little action has been taken against states found to be non-compliant.
While presumed innocent until found guilty, Bashir should not hide from the law. The fact that he continues to put his fellow-African leaders in a precarious position by visiting signatory states and refusing to answer charges brought against him is another problem. His visits continue to jeopardise the rule of law in these nations and compromise the quest for international justice and accountability. The events that unfolded in South Africa are a clear indication of the extent of damage left in his wake.
After his visit to South Africa, an unprecedented meeting was held between the judiciary and the executive.
The executive blatantly disregarded a direct court order when Bashir was allowed to leave the country. Facilitating and permitting his escape despite being strictly instructed by the court that Bashir ought to remain in South Africa pending the finalisation of the legal proceedings precipitated a massive uproar and generated concern about governance and the rule of law in South Africa.
Bashir’s visit and hasty departure had massive legal and political consequences including encouraging the ANC to call for withdrawal from the ICC. Due to procedural irregularities, the domestic courts came to the rescue earlier this year and prevented the government from abandoning the ICC. However, should the ICC make an adverse ruling, the government could decide to initiate the withdrawal process all over again. Unlike the last attempt that was riddled with unconstitutional steps, this time around, the government could succeed in its short-sighted quest to abandon the ICC.
That being said, the ICC should not be held hostage by threats of withdrawal and must rule without fear or favour in accordance with the law. Perhaps the government will recognise that valuable opportunities for engagement will be missed should South Africa withdraw.
The ICC is not beyond reproach, but avenues for engagement and dialogue should be pursued to improve it and make it a court that the international community can be proud of.
Whether found to be non-compliant or not, the government should work to improve the court it helped establish 19 years ago at the Rome Conference.
DISREGARD: President Jacob Zuma with Sudanese President Omar al-Bashir. Bashir’s visit flouts the rule of law and compromises the quest for international justice and accountability, says the writer. Picture: Jacoline Prinsloo