Last week’s decision by the Pre-Trial chamber of the International Criminal Court (ICC) that South Africa violated its legal obligations to the court in failing to arrest Sudanese President Omar al-Bashir in 2015; vindicates the ANC’s position that South Africa should withdraw from the ICC.
The court was in essence forcing South Africa to choose between carrying out its obligations in terms of the Rome Statute and arresting a sitting Head of State while he was attending a summit as a guest of the African Union: a decision with far-reaching and potentially disastrous foreign policy implications.
Far from being praised for our efforts to promote peace and stability in the region, South Africa would have been regarded as having been a “player” in the conflict – with consequences for our peacekeepers in Sudan, and for the country as a whole.
The ANC reiterates its commitment to multilateralism as a means to advance the aims and objectives of the UN Charter on Human Rights. However, justice is a universal ideal, and does not only apply to some.
In 1998 the South African government ratified the Rome Statute in good faith; optimistic the court would act impartially and in the best interests of all nations.
Unfortunately, this has not proved to be the case as the ICC selectively pursues justice; with external actors imposing sanctions over signatory countries in line with a statute they themselves are not subject to. These instances of political interference can no longer be ignored.
With regards to not only Sudan but all societies embroiled in or emerging from conflict; questions must be asked: First, as to whether arresting President al-Bashir would have been in the best interests of Sudan. Second, whether the ICC is the only means by which one may balance the need for justice, peace and reconciliation.
On the first point; the ANC is committed to being part of the solution in Sudan: a solution where the needs, hopes and aspirations of the people of Sudan come first.
South Africa is involved in peacekeeping missions in several countries, including Sudan, and is also “actively involved in ensuring that the fragile peace process under way in Sudan and South Sudan holds — in the interests of the peoples of those sovereign states”.
President Jacob Zuma has met with warring factions in the region on a number of occasions, where they expressed to him that there could be no solution to the conflict in Sudan without involving the National Congress Party, and President al-Bashir.
There have recently been small but positive signs that peace may be coming to Sudan. Last week President al-Bashir extended the four-month long ceasefire currently in place in Darfur, Blue Nile and South Kordofan in “as part of the government’s initiative to bring peace to Sudan”.
This month the United States administration is expected to announce whether it will lift a 20-year economic embargo on Sudan as the six-month review period expires.
In January the outgoing Obama administration had issued an executive order “to permanently repeal a range of sanctions” against Khartoum, citing that government’s efforts to improve regional security.
Any improvement in bilateral relations between the US and Sudan, as well as with the other countries of the continent would not be foreseeable without the Sudanese government.
On the matter of whether the ICC is the only viable instrument of pursuing international justice, the ANC has been clear that we will continue to urge government to enter into multilateral and bilateral negotiations with African countries to expedite the reform of the African Court on Human and People’s Rights.
This is in addition to supporting other regional tribunals “to ensure that serious crimes against humanity can be promptly and efficiently tried by these bodies”.
An example is the community-based Gacaca Courts set up in Rwanda following the 1994 genocide. The Special Court for Sierra Leone, set up in 2002 to try those accused of war crimes, is another example.
The most notable example is South Africa itself. Upon attaining democracy, we could have chosen the Nuremburg Trial route – but instead opted for a Truth and Reconciliation Commission (TRC).
With regards to Sudan itself, there were calls made around 2009 for the AU to assist with the establishment of a local tribunal to be established to deal with abuses committed in the Darfur region.
These regional tribunals align with the ANC’s International Relations policy priorities that are informed by among other things, our endorsement of Agenda 2063 of the African Union (AU): of “an integrated, Prosperous and Peaceful Africa… driven by its own citizens…”
The ICC decision, although widely expected, is regrettable. The ANC government’s decision to withdraw from the ICC remains, and is in line with various party resolutions; reaffirmed during the recent National Policy Conference.
It is the people of Sudan who stand to lose the most if the region once again descends into warfare. Executing the arrest warrant would have scuppered any chances for peace in Sudan. DM
Edna Molewa is chairperson of the ANC international relations sub-committee