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25 April 2017 22:13 (South Africa)
Opinionista Brad Cibane

Rock? Hard place? South Africa in a tricky position

  • Brad Cibane
    brad-cibane.jpg
    Brad Cibane

    Brad Cibane is a Franklin Thomas Fellow and an LLM Candidate at Harvard Law School.

The presence of Sudanese President Omar al-Bashir in Johannesburg for the 25th African Union Summit was bound to cause a storm. South Africa has national and international legal obligations to execute two outstanding International Criminal Court warrants for Al-Bashir’s arrest.

The Pre-Trial Chamber of the International Criminal Court (ICC) indicted President Omar al-Bashir in March 2009 and July 2010 as an indirect co-perpetrator on 10 counts including genocide, crimes against humanity and war crimes. These crimes were allegedly committed during the conflict in Darfur between 2003 and 2005.

Predictably, the ICC, through its head Sidiki Kaba, sprang quickly into action by calling on South Africa to “spare no effort in ensuring the execution of the arrest warrants”. The Southern African Litigation Centre (SALC) led the domestic effort by approaching the High Court in Pretoria with an urgent application to force the government to meet its obligations.

As lawyer Michael Power remarked for the African Legal Centre, South Africa’s international and domestic legal obligations are clear and the High Court’s conclusion was easily predictable. 

That, of course, was not the end of the matter. The disgraced Nazi ideologue Carl Schmitt remarked (in his less-contaminated work) that while “the legal” is considered an “antithesis of the political”, within law there is also politics. Politics is the process and consequence of power. The law, on the other hand, is the outcome of a political process concretised into sanctionable commands.

Therefore, whereas courts have a limited task of deciphering and enforcing laws, our task as civil society is more political. We must question the wisdom of black letter laws and, where necessary, take a stand against a law that is unjust, unfair, oppressive or plainly stupid.

You may be puzzled as to how this relates to al-Bashir and the ICC. In theory, at least, the ICC pursues the noble objective of bringing perpetrators of heinous crimes to book. My contention is that it is not all that simple.

In 2009 the South African government advised al-Bashir not to travel to South Africa for President Jacob Zuma’s inauguration. However, his presence in South Africa this time around is hardly surprising. It coincided with the sea change in the African Union’s relationship with the Court. Sudanese information minister Ahmed Bilal Osman said, "Al-Bashir went to South Africa with complete guarantees that it will respect the African position regarding the ICC."

In considering this sea change, we must first ask whether there is a universal global demand for international justice that has been violated by our government by refusing to execute the warrants. If the answer is in the affirmative, then the demand should apply equally to perpetrators of atrocities in Iraq, Libya, Afghanistan and Pakistan (among other places). That would be the end of the matter

The structure and practice of the ICC suggest the contrary – that the pursuit for international justice is limited to weaker states, particularly in Africa. If this is true, then we must question whether the Court’s efforts do not cause further destabilisation of peace- and nation-building on the continent.

Consider this: In 2009 the African Union Peace and Security Council (AUPSC) protested that the warrant for al-Bashir's arrest threatened to scuttle an ongoing process to bring lasting peace in Sudan. A year later in 2010 the AUPSC requested the United Nations Security Council (UNSC) to exercise its powers under Article 16 of the Rome Statute to his defer the indictment and arrest. When the UNSC refused to so much as give a response to the request, the Union took a collective decision not to co-operate with the Court.

Head of the Justice and Reconciliation in Africa Programme at the Institute for Justice and Reconciliation, Dr Tim Murithi, has remarked that, while the Union’s decision not to co-operate with the Court is undoubtedly motivated by politics, its claim that al-Bashir is a key interlocutor with armed militias and political parties could not simply be ignored or wished away.

Alex De Waal, executive director of the World Peace Foundation at the Fletcher School of Law and Diplomacy at Tufts University, also noted that pursuing key interlocutors, as the ICC does, has the potential to disrupt on-going peace initiatives. He qualifies the claim by saying the ICC cannot be identified as the major culprit. In the case of Sudan, he argues “the ICC’s investigations and indictments have occurred in the context of high-octane confrontations between Khartoum and Washington DC”. This should be a serious cause for concern.

We should, in my view, take the argument even further. The ICC’s – and UNSC’s – bullheadedness has the consequence of pitting African states against each other, thus scuttling attempts to build unity on the continent.

South Africa and Botswana have consistently re-affirmed their obligations under the Rome Statute. In response, the AU took a decision in 2012 to sanction any member state that executes the warrants of arrest against al-Bashir. The call on South Africa to “spare no efforts” ignored this threat of sanctions.

Who then, I ask, does it serve South Africa to defy the Union and risk sanctions? Consider that South Africa is a key player in the region. Sanctions would shut off the diplomatic channels South Africa has been using to advance peace, democracy and security in various parts of the continent.

One may be tempted to respond that the ICC, as a court, should not concern itself with political processes such as peace and nation building. This claim would, however, be betrayed by ICC practice. First, al-Bashir’s case was referred to the Court by the UNSC through Resolution 1593 (2005). The UNSC is an overtly political body. Second, the ICC has avoided investigating “politically sensitive” situations when non-Africans are involved. Examples of such situations, as Murithi points out, include Gaza, Sri Lanka and Chechnya.

What then is the solution? Should Africans leave the ICC en masse and take a business as usual approach? Should we clad Big Men like al-Bashir with impunity because they are interlocutors in politically precarious situations?

The answer, I think, is slightly more complex.

I think we must shift our focus from pursuing punitive justice to pursuing peace and democracy on the continent. Human rights violations are commonplace on the continent not because Africans are evil or more prone to violence. Atrocities happen because of the environmental conditions created by a lack of democratic institutions. To be sustainable, efforts to effect punitive justice must be coupled with transformative constitutionalism, democracy and development. For whatever reason the ICC seems unmoved by these objectives. DM

  • Brad Cibane
    brad-cibane.jpg
    Brad Cibane

    Brad Cibane is a Franklin Thomas Fellow and an LLM Candidate at Harvard Law School.

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