D-Day is loom­ing for the coun­try

The Star Early Edition - - OPINION & ANALYSIS -

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

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