Explain al-Bashir decision – ICC

Government summoned to provide reasons for not honouring its obligations

SOUTH Africa has been summoned to the International Criminal Court to explain its failure to honour its international agreements. The country could be in hot water over its failure to carry out an international arrest warrant issued for Sudanese President Omar al-Bashir.

But despite the severity of the summons, South Africa is likely to get away with nothing more than a slap on the wrist.

International law experts believe legally South Africa does not have a defence, as the Rome Statute is clear in what it expects of its members.

But law expert Bonita Meyersfeld said there might be an argument that would put the country’s strategic and political needs above the ICC’s requirements.

“As much as South Africa has an obligation to the ICC, it also has a regional obligation to the AU,” Meyersfeld said.

“South Africa can argue politics in it’s submission to the ICC, but cannot say that the international law is not clear.”

Al-Bashir, accused of masterminding genocide in Darfur, was able to leave an African Union summit hosted by South Africa and fly home, in defiance of a ruling by a South African court ordering his de- tention under a warrant from the International Criminal Court (ICC) in June.

In a statement issued yesterday by the ICC, South Africa was ordered to submit by October 5 the reasons for its failure to arrest al-Bashir

Africa analyst and Wits University senior lecturer Koffi Koaukou said the ICC might issue a warning or impose a fine on South Africa, as the country had signed up for something it was not fully committed to.

“South Africa can argue that al-Bashir is no longer here and that there is nothing they can do because it is not their job to arrest or detain anyone,” Koaukou said.

“By law, it is guilty. South Africa may face a penalty and it’s not good for its image as a law-abiding nation.”

The SA Litigation Centre said the request for a submission by the ICC was really an opportunity for South Africa to state its position before the international community and should be welcomed in the interests of fairness for all parties involved.

“It is hoped that South Africa will continue to cooperate and constructively engage with the existing international criminal justice mechanisms,” the centre’s Angela Muduku said.

President Jacob Zuma defended the de- cision to let al-Bashir leave the country, saying he had immunity as a guest of the African Union.

But experts believe South Africa had an agenda and letting al-Bashir go was a form of protest against the ICC for its perceived selective targeting of African leaders.

“South Africa has a strong African policy and will support Africa at all costs,” Koaukou said.

“African leaders are saying the ICC is only targeting Africans and focusing on black leaders, and not the white leaders, which is factually the case,” Meyersfeld said.

While there have been talks about South Africa reconsidering its membership of the ICC, experts said it would be a complex process and would affect South Africa’s image.

“Pulling out of the ICC would potentially prompt other African countries to follow suit,” Koaukou said.

“Leaving the ICC will also show inconsistency in South Africa when it comes to human rights issues and applying the law.”