Defend Truth


ICC: Pursuing justice has never been more important


Jay Naidoo is founding General Secretary of Cosatu, a former minister in the Nelson Mandela government and is a board member of the Mo Ibrahim Foundation.

We should all be outraged at the intention of our government to withdraw from the International Criminal Court. In whose interests do they govern? Has the foundation of our democracy, a commitment to social justice, human rights and equality before the law been thrown out of the window? Should our public debate not be about justice for the millions of victims who suffer daily atrocities at the hands of brutal dictators who claim to rule on our behalf?

South Africa’s failure to arrest Omar al-Bashir during his visit in 2015 was a nod to impunity, to political power over accountability and a complete disregard for both the victims and the system of international justice. It seems this is the path our government has chosen. Just observing the police brutality during the recent student uprisings I fear what next part of the foundation of our democracy will be displaced.

In June 2015, global media attention briefly focused on a convoy dramatically speeding towards a remote South African military airport. Awaiting its arrival at the Waterkloof Airforce Base and all ready for departure was the plane of an escaping Omar al-Bashir, ready to hurriedly shuttle him out of South Africa, in contravention of an earlier South African High Court order and without being arrested on International Criminal Court (ICC) charges of genocide, war crimes and crimes against humanity.

An inquest quickly focused on how a president had been able to leave the country with a police escort, under the glare of the media, but without – apparently – the knowledge of the South African authorities. In the days and weeks that followed, discussions would move on to not why Al-Bashir was subject to an arrest warrant – his (all alleged) systematic pillaging of civilian towns and villages; murder and extermination of civilians; subjecting of thousands of women to rape; forcible transfer of hundred of thousands of civilians from their homes; his torture of civilians, and the contamination of wells and water pumps of towns and villages – but rather his being “targeted” as an African head of state.

The voices of those victims targeted by Al-Bashir’s alleged crimes were drowned out by the more powerful voices of certain African leaders decrying their alleged ongoing “targeting” by the ICC. For the government of South Africa, the real victim in the whole saga was apparently Al-Bashir – who should have been able to claim immunity – despite South Africa’s strong domestic legislation and South Africa’s international obligations pointing in the opposite direction.

This narrative has to change.

There is no doubt that countless horrors have been inflicted on the civilian population in Darfur and many other places in Sudan. Women have been the victims of sexual violence with rape the chosen weapon of war. Time and again, victims have spoken out about the despicable, how they have been abducted and placed in camps holding girls as young as eight years old, and raped by militia.

As one victim described:

They are doing what they want to anyone… Now we are here in a bad situation, without shelter… [Women] cannot go back to the farms to depend on ourselves because they will rape us. And if the men go they will beat them or kill them… they loot, rape women, and kill children. No less mercy is shown to those attempting to flee from attacks.”

And the atrocity seems to continue. According to Amnesty International, the Sudanese government, in its latest military campaign in the Jebel Marra area of Darfur, appears to have used chemical weapons to attack civilians and gain control over territory. A survivor explained to Amnesty International the symptoms he developed in the aftermath of such an attack:

When the bomb exploded my muscles started contracting. And later the same day I started shaking a lot… and then I started losing feeling in the left side of my body, from my leg to my shoulder… later, the whole side became paralysed. Now I can only walk with a stick… After about two weeks my skin started falling off…”

There is no indication that these atrocities will end, that there are any consequences for the people responsible for commanding or executing the attacks, or that victims will ever have a domestic avenue for truth, justice or reparation.

However, blame does not lie solely with South Africa. The UN Security Council, despite receiving 23 reports from the Prosecutor of the ICC, has not taken any concrete action to follow up on instances of Al-Bashir’s non-arrest. The Security Council has not funded the investigation into Darfur, leaving the ICC’s states parties to foot the bill, which they have done, but not to the level that they should have.

The criticisms of double-standards in international justice can also be laid at the feet of the UNSC, as it egregiously threatens to veto referrals to the ICC of situations outside Africa – playing firmly into the hands of Al-Bashir’s and his supporters’ narrative.

The ICC is not perfect and the fact that Al-Bashir is able to conduct his affairs unaffected by the outstanding arrest warrant confirms that its capacity is limited by political relationships between states and the funding required to run cases. But it is up to those very same states that criticise, including those African states who criticise the court for being “anti-African”, to engage constructively with the court from within and to work to maximise the court’s ability to ensure accountability and access to justice for all victims, Africans and non-Africans.

Withdrawal from the Rome Statute will not achieve this, and the victims of Darfur as well as all the other global situations the court is investigating – including Palestine and Afghanistan – lose the most from a weakened court.

Pursuing justice has never been more important. Legitimate criticisms of the ICC and international justice should be absolutely discussed, but in these discussions, our narrative must not forget why Al-Bashir is wanted by the ICC, and in whose interests the Court is really acting. DM


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