SA seek­ing le­gal coun­sel after al-Bashir rul­ing

The Star Early Edition - - FRONT PAGE - SIYABONGA MKHWANAZI

THE GOVERN­MENT is seek­ing le­gal ad­vice after the In­ter­na­tional Crim­i­nal Court (ICC) ruled that it had a duty to ar­rest Su­dan Pres­i­dent Omar al-Bashir back in 2015.

Bashir, who grabbed power in a coup in 1989, has two war­rants of ar­rest out for him for war crimes and geno­cide. He has been ac­cused of the deaths of 300 000 people and the dis­place­ment of more than three mil­lion Dar­furis.

An­a­lysts are now warn­ing that South Africa’s fail­ure to take Bashir into cus­tody two years ago when he was in South Africa on AU busi­ness will have se­ri­ous im­pli­ca­tions. Yes­ter­day, the govern­ment said it would study the judg­ment and seek le­gal ad­vice.

Spokesper­son for the Depart­ment of In­ter­na­tional Re­la­tions and Co-op­er­a­tion, Nel­son Kg­wete, pointed out that the ICC had not re­ferred the mat­ter to the UN Se­cu­rity Council or mem­ber states of the ICC.

Based on this, the govern­ment would study the rul­ing and its im­pli­ca­tions and seek le­gal opin­ion on its avail­able op­tions, said Kg­wete.

“In the mean­time, South Africa re­it­er­ates its to­tal com­mit­ment to the prin­ci­ples of in­ter­na­tional jus­tice.”

But Par­lia­ment struck a dif­fer­ent chord. Siphosezwe Masango, chair­per­son of the port­fo­lio com­mit­tee on in­ter­na­tional re­la­tions, said the de­ci­sion con­firmed why the govern­ment wanted to with­draw from the ICC.

Di­rec­tor for Ap­plied Le­gal Stud­ies and as­so­ciate pro­fes­sor at the Law School at Wits Univer­sity, Bonita Mey­ers­feld, said there could be im­pli­ca­tions for South Africa in the judg­ment.

“Ac­cord­ing to the prin­ci­ple of state re­spon­si­bil­ity in in­ter­na­tional law, the find­ing by the ICC will trig­ger a range of pos­si­ble con­se­quences, in­clud­ing South Africa hav­ing to give an un­der­tak­ing not to re­peat the harm.” In­de­pen­dent an­a­lyst Paul Gra­ham said the judg­ment had con­firmed pre­vi­ous judg­ments in the South African courts against the govern­ment on Bashir.

“There are two things to note on the judg­ment. The present AU statutes do not al­low heads of state im­mu­nity.” He said in a mi­nor­ity judg­ment, the judges found that South Africa was a sig­na­tory to a treaty on geno­cide, and this meant that it had a duty to ar­rest Bashir.

It was wor­ry­ing that South Africa wanted to with­draw from the ICC, said Gra­ham.

Masango said the court’s de­ci­sion would lead to the con­fir­ma­tion of South Africa’s with­drawal from the ICC.

Masango said Bashir had diplo­matic im­mu­nity when he en­tered South Africa. “If this rul­ing is in­sis­tent that South Africa ought to have ar­rested the pres­i­dent of Su­dan, then that is jus­ti­fi­ca­tion enough for the South African govern­ment to leave the ICC, as a mat­ter of ur­gency.”

The DA said the judg­ment con­firmed the ear­lier judg­ments of the South African courts, which had ruled against the govern­ment on the mat­ter. DA fed­eral ex­ec­u­tive chair­per­son James Selfe said his party wel­comed the judg­ment. It was an in­dict­ment against the ANC govern­ment, he added.

He said it was a pity that the ANC was stub­bornly stick­ing to its guns to pull out of the ICC after its de­ci­sion at its pol­icy con­fer­ence in Nas­rec, Joburg, this week.

PAC spokesper­son Ken­neth Mok­gathle said: “Omar al-Bashir can­not be taken (and) cru­ci­fied like Colonel Muam­mar Gaddafi. The AU must be bold and lead us. How is it pos­si­ble that we are still sub­jects of the West? We have been colonised for cen­turies; we are now re­colonised un­der the guise of democ­racy.”

SOUTH Africa should not be a friend, as­so­ciate or pro­tec­tor of the Pres­i­dent of Su­dan, Omar al-Bashir. Yes, we know the West is full of hypocrites – and that coun­tries of the so-called de­vel­oped world have un­leashed un­told mis­ery and vis­ited hor­rific death and de­struc­tion in dozens of coun­tries around the globe.

We be­lieve that any world leader, whether he or she be from the US, the United King­dom, Ger­many or France, should be charged with war crimes if they are guilty of wide­spread tor­ture and the use of weapons of war on the in­no­cent.

We con­demn the doc­trine of col­lec­tive pun­ish­ment.

We be­lieve it is as das­tardly as the ter­ror­ism we reg­u­larly – and rightly – con­demn.

We are there­fore hor­ri­fied that South Africa would want to de­fend some­one ac­cused of hav­ing car­ried out the most hor­ren­dous of war crimes – be­cause some­one else in the West has not been ac­cused of and charged with sim­i­lar crimes. It is crazy logic. Given what the ma­jor­ity of South Africans lived through dur­ing the apartheid years – the mur­der, the tor­ture and the gen­eral de­pri­va­tion based on skin colour – we would have ex­pected our govern­ment to stand up for the right to dig­nity and life of those un­der threat all over the world. Es­pe­cially in Su­dan. Omar al-Bashir grabbed power in a coup in Su­dan in 1989 – and al­most im­me­di­ately start­ing rul­ing with an iron fist.

The In­ter­na­tional Crim­i­nal Court (ICC) has ac­cused him of be­ing the or­ches­tra­tor of geno­cide in Dar­fur, in the west of Su­dan.

On March 4, 2009, the court is­sued a war­rant of ar­rest against Bashir for crimes against hu­man­ity and war crimes.

He is ac­cused of be­ing the mas­ter­mind be­hind the deaths of more than 300 000 men, women and chil­dren, and of the dis­place­ment of more than 3 mil­lion Dar­furis.

In June 2015, South Africa had a chance to ar­rest him when he was in the coun­try for an African Union meet­ing. They didn’t. Yes­ter­day, the ICC ruled that our govern­ment was at fault for not ar­rest­ing him.

We urge our govern­ment to think back on our ex­pe­ri­ences un­der apartheid, and the in­au­gu­ra­tion speech in May 1994, of the found­ing fa­ther of our democ­racy, Nel­son Man­dela. “Never, never and never again shall it be that this beau­ti­ful land will again ex­pe­ri­ence the op­pres­sion of one by an­other,” he said.

Let us re­mem­ber these words, and let us act ac­cord­ingly when deal­ing with tyrants such as Omar al-Bashir.

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