SA seeking legal counsel after al-Bashir ruling
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.