Opinionista Saul Musker 16 March 2016

Government guilt: Al-Bashir and South Africa’s culpabiity

On 15 June 2015, rumours began to spread that the Sudanese presidential jet was preparing for take-off at Waterkloof Air Base in Pretoria. A day earlier, a High Court judge had issued an interim order barring Omar al-Bashir from leaving South Africa. Arguments were being heard over an application for his arrest. Soon enough, these rumours were confirmed: the world’s most despised autocrat was safe at home, thanks to the help of the South African government. Nine months later, the Supreme Court of Appeal has issued a scathing rebuke of those responsible.

In March 2009, a pre-trial chamber of the International Criminal Court approved an arrest warrant for Omar Al-Bashir, charging him with five counts of crimes against humanity (for murder, extermination, forcible transfer, rape and torture), two counts of war crimes (for intentionally directing attacks against a civilian population) and three counts of genocide. The ICC claims that “evidence shows that al-Bashir masterminded and implemented a plan to destroy in substantial part the Fur, Masalit and Zaghawa groups, on account of their ethnicity”.

Under al-Bashir’s watch, armed forces and the Janjaweed militia attacked and destroyed villages, killing thousands and displacing millions of civilians. Dozens of eyewitness accounts reveal the grotesque cruelty to which the people of Darfur were subjected: government soldiers would hunt down the survivors of their attacks in the desert, surround displacement camps, disrupt humanitarian supplies and regularly gang-rape girls in front of their parents. Al-Bashir ordered several of these actions himself; at the very least he refused to intervene to stop them, preferring to give his tacit approval as things spiralled.

Nobody has argued that he is innocent of these crimes: the evidence against him is overwhelming, and in any case he would receive a fair trial before the ICC with an adequate defence and the option of appeal. The government has instead maintained that arresting al-Bashir would jeopardise a fragile peace in the region. But no lasting or stable peace can rely on the presence of a single man. And the dichotomy between peace and justice is a false one each requires the other, and either on its own is insufficient. The logical result of this argument is that heads of state will enjoy impunity for their crimes as long as they remain in power, which few reasonable people would find conscionable.

The creation of such a moral hazard, an environment in which despots are allowed to get away with the worst depravities imaginable, is precisely what the Internationa Criminal Court exists to prevent.

But this argument distracts from the real issue at stake that the government of South Africa broke the law. In a blatant abuse of executive power, it defied a court order that al-Bashir should not be allowed to leave the country. It did so with a breathtaking disregard for the limits on its authority. At the time, Judge President Dunstan Mlambo of the Gauteng High Court ruled that “the conduct of the respondents [the state] to the extent that they have failed to take steps to arrest and detain the president of Sudan, Omar al-Bashir, is inconsistent with the Constitution of the Republic of South Africa.” The government’s behaviour displayed an unprecedented arrogance and cynicism, a willingness to ignore its legal obligations. And that, more than anything else, is what we should be afraid of.

The state’s legal argument in the high court centred on an agreement between South Africa and the AU Commission supposedly granting diplomatic immunity to al-Bashir while he attended a summit. In the Supreme Court of Appeal (SCA), the state changed its stance slightly to argue that customary international law conferred a general immunity which overpowered its obligations to comply with the ICC’s arrest warrant. Both of these arguments were dismissed outright and unanimously by the SCA.

Most important, sections 4(2) and 10(9) of the Implementation of the Rome Statute Act, which integrated the Rome Statute’s provisions into domestic law, explicitly provide that diplomatic immunity “does not constitute a ground for refusing to issue an order” enforcing an ICC arrest warrant. The government was therefore obliged to co-operate with the ICC’s requests; its decision not to do so was, according to the SCA, “unlawful”.

The SCA’s verdict is clear: the government broke the law twice, by disobeying a direct order of the High Court not to allow al-Bashir to leave the country (which the judgment labels “disgraceful conduct”), and by refusing to arrest and surrender him to the ICC.

The rule of law is a crucial tenet of any functioning democracy. We need to be able to rely on the consistent application of laws in order to maintain social and political stability. We need to ensure everyone in society is constrained equally by the law, including (and especially) the government, to prevent abuses from occurring. But the rule of law is a matter of reciprocal adherence; if the state decides not to obey the courts, what can the courts do to stop it?

Ultimately, the debacle that unfolded in June last year indicates either extreme incompetence on the part of the government or a flagrant disregard for the rule of law.

The latter is almost certainly the case. That an elected government in a constitutional democracy should feel able to completely ignore a court order in contravention of its legal duties, and in so doing allow a suspect of grave human rights abuses to escape its territory in defiance of international law, is a sign of profound crisis. We should all be on our guard. DM

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