A very se­lec­tive ICC over­shoots the mark

The Star Early Edition - - INSIDE -

LATE LAST week the pre-trial cham­ber of In­ter­na­tional Crim­i­nal Court (ICC) ruled that South Africa vi­o­lated its le­gal obli­ga­tions to the court in fail­ing to ar­rest Su­dan’s Pres­i­dent Omar al-Bashir when he was at­tend­ing a sum­mit of the AU in South Africa in 2015.

The court found that it would not be ap­pro­pri­ate to re­fer the mat­ter to ei­ther the Assem­bly of State Par­ties to the Rome Statute, or to the UN Se­cu­rity Coun­cil (UNSC), be­cause this was not con­sid­ered an ef­fec­tive way to ob­tain co-op­er­a­tion with the ICC.

The de­ci­sion, al­though re­gret­table, was widely ex­pected.

Al­though we note the pre-trial court’s de­ci­sion, the ANC be­lieves the court’s de­ci­sion once again vin­di­cates our po­si­tion that we should with­draw from the ICC – where we were be­tween a rock and a hard place: forced to choose be­tween car­ry­ing out our obli­ga­tions in terms of the Rome Statute – and tak­ing a de­ci­sion with far-reach­ing and po­ten­tially dis­as­trous for­eign pol­icy im­pli­ca­tions.

In this case, ex­e­cut­ing the ar­rest war­rant would have scup­pered any chances for peace in Su­dan. The ANC’s de­ci­sion is in line with var­i­ous party res­o­lu­tions; and was reaf­firmed dur­ing the re­cent na­tional pol­icy conference.

The ANC be­lieves the ICC has vastly strayed from the orig­i­nal pur­pose for which it was es­tab­lished. In 1998 the South African gov­ern­ment rat­i­fied the Rome Statute in good faith; op­ti­mistic the court would act im­par­tially and in the best in­ter­ests of all na­tions.

Un­for­tu­nately, this has not proven to be the case – as the ICC se­lec­tively pur­sues jus­tice; with ex­ter­nal ac­tors and pow­er­ful in­ter­ests (in­clud­ing the per­ma­nent mem­bers of the UNSC) im­pos­ing sanc­tions over sig­na­tory coun­tries in line with a statute they them­selves are not sub­ject to. These in­stances of po­lit­i­cal in­ter­fer­ence can no longer be ig­nored.

The ANC is com­mit­ted to be part of the so­lu­tion in Su­dan: a so­lu­tion where the needs, hopes and as­pi­ra­tions of the peo­ple of Su­dan come first.

South Africa is in­volved in peace­keep­ing mis­sions in sev­eral coun­tries, in­clud­ing Su­dan, and is also “ac­tively in­volved in en­sur­ing that the frag­ile peace process un­der way in Su­dan and South Su­dan holds – in the in­ter­ests of the peo­ples of those sov­er­eign states.”

Far from be­ing praised for our ef­forts to pro­mote peace and sta­bil­ity in the re­gion, South Africa would have been re­garded as hav­ing been a “player” in the con­flict – with con­se­quences for our peace­keep­ers and the coun­try as a whole.

This month the US ad­min­is­tra­tion is ex­pected to an­nounce whether it will lift a 20-year eco­nomic em­bargo on Su­dan; as the six-month review pe­riod ex­pires.

In Jan­uary the out­go­ing Obama ad­min­is­tra­tion had is­sued an ex­ec­u­tive or­der “to per­ma­nently re­peal a range of sanc­tions” against Khar­toum, cit­ing that the gov­ern­ment’s ef­forts to im­prove re­gional se­cu­rity.

Cou­pled with this, last week Pres­i­dent Bashir ex­tended the four-month long cease­fire cur­rently in place in Dar­fur, Blue Nile and South Kord­o­fan “as part of the gov­ern­ment’s ini­tia­tive to bring peace to Su­dan”.

Any im­prove­ment in bi­lat­eral re­la­tions be­tween the US and Su­dan, as well as with the other coun­tries of the con­ti­nent would not be fore­see­able with­out the Su­danese gov­ern­ment.

Pres­i­dent Zuma has met with war­ring fac­tions in the re­gion on a num­ber of oc­ca­sions, where they ex­pressed to him that there could be no so­lu­tion to the con­flict in Su­dan with­out in­volv­ing the Na­tional Congress Party, and Pres­i­dent Bashir.

The ANC knows that it is the peo­ple of Su­dan who stand to lose the most if the re­gion once again de­scends into war­fare.

In their ea­ger­ness to score points against their own gov­ern­ment, the lo­cal NGOs fail to re­alise that all the fledg­ling ef­forts to­wards peace we are cur­rently wit­ness­ing in Su­dan would have been de­stroyed, and the decades long con­flict re­sumed.

The ANC re­it­er­ates its sup­port for the role of in­ter­na­tional law in stamp­ing out atroc­i­ties. We fur­ther re­main com­mit­ted to mul­ti­lat­er­al­ism.

Now, more than ever, the world needs a col­lec­tive mech­a­nism to pro­tect the vul­ner­a­ble, and to en­sure that those ac­cused of war crimes are brought to jus­tice.

It is un­for­tu­nate that some have come to re­gard the se­lec­tive jus­tice of the ICC as the Holy Grail of in­ter­na­tional jus­tice – when other forms of pur­su­ing re­dress and jus­tice also ex­ist.

The com­mu­nity-based gacaca courts es­tab­lished in Rwanda af­ter the 1994 geno­cide are one ex­am­ple. The Spe­cial Court for Sierra Leone, set up in 2002 to try those ac­cused of war crimes, is another ex­am­ple.

The most no­table ex­am­ple is South Africa it­self. Upon at­tain­ing democ­racy, we could have cho­sen the Nurem­berg Trial route – but in­stead opted for a Truth and Rec­on­cil­i­a­tion Com­mis­sion.

With re­gards to Su­dan it­self, there were calls made around 2009 for the AU to as­sist with the es­tab­lish­ment of a lo­cal tri­bunal to be es­tab­lished to deal with abuses com­mit­ted in the Dar­fur re­gion.

The ANC’s in­ter­na­tional re­la­tions pol­icy pri­or­i­ties are in­formed by among other things, our en­dorse­ment of Agenda 2063 of the AU: of “an in­te­grated, pros­per­ous and peace­ful Africa… driven by its own cit­i­zens…”

It is for this rea­son that the ANC has re­peat­edly said that we will con­tinue to urge the gov­ern­ment to en­ter into mul­ti­lat­eral and bi­lat­eral ne­go­ti­a­tions with African coun­tries to ex­pe­dite the re­form of the African Court on Hu­man and Peo­ple’s Rights as well as other re­gional tri­bunals “to en­sure that se­ri­ous crimes against hu­man­ity can be promptly and ef­fi­ciently tried by these bod­ies”. Edna Molewa is chair­per­son of the ANC

In­ter­na­tional Sub­com­mit­tee.

The ANC… sup­ports the role of in­ter­na­tional law

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