Opinionista Alan Wallis 15 June 2015

Diplomatic impunity: South Africa flouts international and domestic law by failing to arrest al-Bashir

International criminal law, its application and enforcement plays out in an environment where law, politics, international relations, diplomacy and justice intersect. It is a playing field that involves many actors – governments, regional organisations, international institutions, victims and civil society. This complex dynamic played out in dramatic style over the weekend with the arrival in South Africa of International Criminal Court indictee and Sudanese President, Omar al-Bashir. 

On Saturday night Sudanese president and International Criminal Court (ICC) indictee, Omar Al Bashir, flew into South Africa to attend the African Union (AU) Summit currently underway in Johannesburg.

When al-Bashir landed in South Africa he should have been welcomed by handcuffs and not a red carpet.

Why? Because South Africa’s international treaty obligations and, more importantly, South African law says so. Al-Bashir is the subject of two arrest warrants issued by the ICC for crimes against humanity and genocide in a conflict that has seen up to 300,000 people killed.

When his presence in South Africa became known, the ICC formally issued a statement requesting South Africa to arrest him. Civil society also rapidly mobilised with South African NGO – the Southern Africa Litigation Centre – launching an urgent court application to compel the South African authorities to arrest Bashir. This application will be heard on Monday 15 June. An interim order is currently in place preventing South African authorities from permitting his departure until a final ruling on the arrest has been made. If he does leave, the South African authorities will find themselves in contempt of Court.

The ICC is a product of the Rome Statute, a treaty to which South Africa is party. It was created to try those responsible for the most serious of international crimes (war crimes, crimes against humanity and genocide). All signatories are obliged to cooperate with the ICC to ensure that those responsible are brought to justice. This includes arresting and transferring indicted suspects to the ICC. South African leadership has on two occasions in the past publicly stated that if al-Bashir did come to South Africa he would be arrested. A position that now appears to have changed.

South Africa went even further than most countries when it signed the Rome Statute; it domesticated the Statute and enacted the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (ICC Act). This has the effect of incorporating all of the Rome Statute into national law.

Specified South African institutions are charged with the enforcement and administration of the ICC Act, including the NPA and the South African police, not the Presidency, cabinet or Parliament. Any involvement on their part would amount to undue interference and would undermine the constitutionally guarded independence of these institutions, frustrating their ability to carry out their mandate.

The ICC Act is straightforward in its wording.

First, the overarching purpose of the ICC Act is to ensure that the Rome Statute is implemented in South Africa and “to provide for the arrest of persons accused of having committed the said crimes and their surrender to the [ICC]”.

Second, it removes the defence of head of state immunity, an argument that is likely to form the basis of the South African government’s non-compliance. This is an excuse that has been used by the Democratic Republic of Congo and Malawi in the past. The ICC rejected this argument on both occasions. South Africa will therefore find it hard to sustain this line of reasoning. Section 4 of the ICC Act also allows South African courts to try cases involving a head of state “despite any other law to the contrary, including conventional and customary international law”.

This is consistent with the position under international law, which has been recognised as far back as the Nuremburg war crime trials which followed World War II – that immunity is not accorded to those accused of committing core international crimes. Subsequent international tribunals such as those set up for the former Yugoslavia and Rwanda recognise this, as does Article 27 of the Rome Statute in respect of the ICC.

Critics will also likely argue that because the AU has passed a resolution calling on AU member states not to co-operate with the ICC in respect of the Bashir arrest warrants, non-compliance by African states is justified. An AU Resolution does not carry the weight of law and cannot permit South Africa to contravene its national law and Constitution. AU resolutions should only be seen as binding to the extent that they do not offend national laws and constitutions.

Another critique likely to come up is that the ICC targets Africa and should not receive African co-operation. It is true the ICC is only seized with cases in Africa (but it is important to note that the majority of these were in fact referred by the African states concerned). If indeed there is a case to make out on ‘selective prosecution’ then that has to be raised formally with the ICC; it does not however provide South Africa, or any other country that is a signatory, with any legal basis to disregard its treaty obligation or contravene its own laws.

The al-Bashir non-arrest crisis demonstrates that with international criminal law, its application and enforcement plays out in a charged environment where law, politics, international relations, diplomacy and justice intersect. It is a playing field that involves many actors – governments, regional organisations, international institutions, victims and civil society. Yes, in some instances, such as the present, the enforcement of international criminal law could have an indirect impact on the diplomatic relations between countries. However, political considerations, deference to the AU, and foreign policy motivations are not legitimately considered to trump the South African Constitution and certainly cannot be proffered as justification for not adhering to the rule of law. South Africa is accountable to the international community and the victims of international crimes, victims whose voices are drowned out by presidential politicking and grandstanding.

South Africa, with a past where the law was abused by those in power, operates in a constitutional environment that requires the exercise of all public power, regardless of its source, to be constitutionally compliant. South Africa has committed itself to being a nation conscious of human rights, both domestically and abroad. This must be reflected even in those decisions that may impact its foreign policy and relations. Enforcing the ICC Act and complying with its treaty obligations are both components of this foundational principle.

In the context of international criminal law and the ICC Act, this position was endorsed in October 2014 when the Constitutional Court found that South Africa’s “international and domestic law commitments must be honoured.  We cannot be seen to be tolerant of impunity… We must take up our rightful place in the community of nations with its concomitant obligations. We dare not be a safe haven for those who commit crimes against humanity”.

To allow al-Bashir to leave South Africa would be unconstitutional and an affront to the principle of legality and a show of complete disregard for those seeking justice. Despite the legal position being clear cut, the South African government is opposing the Court application and has not released a statement on al-Bashir’s presence since his arrival.

South Africa’s facilitation of al-Bashir’s entry into South Africa to attend the AU Summit and its refusal to arrest him despite a warrant of arrest, also does little for its waning reputation on human rights issues on the African and international stage. It is unlikely that it will be able to seriously justify a move of this nature. One only has to think back to the Mbeki administration’s ‘endorsement’ of the ‘fairness’ of the 2008 Zimbabwean elections despite being in possession of a highly credible report by two Constitutional Court judges, finding that the elections were not free and fair (only released through prolonged litigation in 2014).

As the South African government figures out its next move (legal or extra-judicial) an interim court order restricts its ability to let al-Bashir leave the country. As it plays host to the AU and several heads of state and with the world watching, we can only hope that it realises that inaction on its part in this instance is tantamount to its complicity in the atrocities committed in Sudan and the denial of justice to victims of international crimes everywhere.

Ignoring South Africa’s commitments under the Rome Statute and ICC Act sets a dangerous precedent and risks reducing all other international human rights treaties that South Africa is party to little more than paper promises, allowing South Africa to selectively pick and choose when and what it complies with.

It certainly is a sorry state of affairs that South Africa purports to be committed to upholding human rights globally but time and again must be brought before our courts to do not only what is legal but what is morally right. Those in government, the Department of international relations and co-operation (Dirco) the AU secretariat, and the Presidency who thought it wise to invite al-Bashir to South Africa, must now deal with the reality that the country has no choice but to arrest Bashir and surrender him to the ICC to face a fair and proper trial. Under our current legal regime, it is not for the South African government to pre-judge the merits of the indictment and charges against al-Bashir. DM

A law graduate from the University of Cape Town and University of Michigan and former clerk at the Constitutional Court, Alan Wallis is a human rights lawyer. Inspired by the law’s unique ability to find itself in the most unlikely, yet appropriate, settings Wallis co-ordinates the Open Society Foundation for South Africa’s Research and Advocacy Unit.


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