SA CHOSE PATH OF OMISSION ON AL-BASHIR

THE saga around Omar alBashir’s presence in South Africa for the African Union Summit, his departure and the court order calling for his detention overshadowed the crucial questions being dealt with by the summit.

It was a weekend of questions and vague answers. The first question was whether al-Bashir would come to SA despite the International Criminal Court (ICC) arrest warrant against him.

He had not come in the past when he was expected because SA had persuaded him not to in order to avoid having to arrest him.

But al-Bashir arrived and was spotted at the summit’s opening.

The next question was why did SA not arrest him on arrival, as it had in the past promised it would?

The answer was not forthcoming in the beginning until it emerged that the cabinet had gazetted a temporary immunity – something similar to what we hear the UK has just given to controversial Israeli politician, Tzipi Livni for her upcoming visit to the UK.

But al-Bashir’s immunity was made void first by the North Gauteng High Court ’ s temporary order disallowing his departure, and second by the final order requiring his arrest.

At this point, SA was forced to abide by its obligations under the Rome Statute and by its constitution. This did not happen because al-Bashir left the country before the second order was announced.

The next logical question was how did this happen? Did the government willingly defy the order of court and thus undermine the rule of law?

There are two main responses to the question in my view. The first is that SA was put under duress by the alleged hostage holding of South African troops in north Darfur, Sudan, by Sudanese soldiers.

But this explanation is very suspect. It is not practical for Sudanese soldiers to move into a huge AU-UN hybrid force base made up of 27 nationalities and find South Africans to take hostage.

This would have been considered a flagrant attack on the UN itself and a matter that could enable the Security Council to order the long-hoped-for military invasion of Sudan.

Would Sudan provoke a Libya scenario and invite an external intervention? I doubt it. The UN would have condemned the attack and would have ensured a joint AU-UN response. Would alBashir provoke the AU that easily? I doubt it.

The second explanation is quite persuasive. SA was faced with contradictory obligations: its ICC and AU obligations. The AU has taken a hard stance against the ICC. SA could not afford to be seen to be elevating its ICC obligations above its AU ones by persuading alBashir not to come.

SA needs Africa to fulfil its leadership ambitions in multilateral bodies, including gaining a permanent seat at the UN Security Council. It is relying on Africa to achieve its economic expansion as its trade continues to increase.

SA therefore decided to do nothing about either. It closed its eyes and hoped the contradiction wouldn’t be made a big issue. This is why security cluster ministers are going to investigate what happened. They don’t know what happened because they did not want to know.

The al-Bashir saga further intensified the AU’s anti-ICC sentiment. AU-ICC relations are now at rock bottom, and this is bad for the fight against impunity for the worst crimes. This makes SA’s relation and future cooperation with the court difficult.

Without African countries, the ICC is virtually dead. Therefore, it ought to re-establish confidence and rapport. It cannot do that by being aloof in its conduct, but has to enlist the legal skills of diplomats to start genuine dialogues. Otherwise it is likely that African states, beginning with SA, might withdraw their ICC membership.

Zondi is with the Institute for Global Dialogue and Unisa

“Without African countries, the ICC is virtually dead