Al-Bashir ruling: Will SA do the right thing?

By Angela Mudukuti

There have been many significant developments in the world of international criminal justice recently. Last week the International Criminal Court confirmed charges against Ugandan Dominic Ongwen, recorded a guilty plea from Ahmad Al Faqi Al Mahdi and convicted the former vice-president of the Democratic Republic of Congo, Jean-Pierre Bemba Gombo.

The International Criminal Tribunal for former Yugoslavia also convicted and sentenced Radovan Karadžic, one of the masterminds behind the 1995 Srebrenica massacre. But it is the Southern Africa Litigation Centre’s recent court victory that warrants further attention as it has raised pertinent questions about South Africa’s future with the International Criminal Court (ICC) and indeed South Africa’s role in supporting international justice.

Sudanese President Omar al-Bashir darkened South Africa’s doorstep in June 2015 as he hoped to attend the 25th African Union Summit in peace and quiet. His visit included everything except peace and quiet. Instead he put the government of South Africa in a precarious position as it is duty bound (by the Rome Statute of the ICC and its own domestic law) to arrest al-Bashir for transfer to the ICC in The Hague. President al-Bashir stands accused of genocide, war crimes and crimes against humanity.

Despite being aware of the legal duty to arrest al-Bashir, he was welcomed by the government. The Southern Africa Litigation Centre, seeking to enforce the two ICC arrest warrants for al-Bashir, approached the high court on an urgent basis. In what has colloquially been referred to as the “Bashir Case” the high court ruled that al-Bashir should be arrested and that the government’s subsequent failure to arrest him was unlawful and therefore invalid.

Unsurprisingly a high court ruling was not enough for the South African authorities who proceed to take the matter on appeal to the Supreme Court of Appeal where they were told in no uncertain terms that failure to arrest al-Bashir was unlawful.

Now that two courts have ruled definitively on the issue where does that leave South Africa and its strained relationship with the ICC?

Threats of withdrawal from the Rome Statute of the ICC have been repeated several times by the ruling party, the ANC, but whether that will actually come to pass is another question altogether.

Will the Supreme Court of Appeal ruling be used as an excuse to push for withdrawal? Will it be used as a tool of political leverage to conveniently and maliciously make it seem as if the nation is heavily burdened by its international commitments?

Will the South African government use this to further spew the trite allegation that the ICC is targeting African leaders?

The unfortunate answer to these questions is likely to be one in the affirmative. But the preferred understanding of the impact of both court rulings should be one that favours justice, accountability and the protection and promotion of human rights. The authorities should be using this case as an opportunity to reaffirm their commitment to the international criminal justice system and should work to perfect the admittedly flawed framework within which the ICC operates.

Frankly speaking the ICC has to work to improve the geography of its docket, that is undeniable. But what is also undeniable is that the current cases before the court involve serious crimes and the African victims of these crimes are as deserving of justice as anyone else in the world.

The controversial United Nations Security Council referral of situations to the ICC is another area that needs to be assessed as it is deeply problematic and tainted by political considerations, an obvious reminder of Cold War dynamics. It is the signatories to the Rome Statute (South Africa included) who should be working to constructively remedy this as opposed to using it as an excuse to abandon the ICC.

Abandoning the only permanent court designed to prosecute perpetrators of genocide, war crimes and crimes against humanity hardly seems like the sensible thing to do. Particularly in view of the fact that the African continent currently has no regional court vested with criminal jurisdiction, leaving the people of the continent with nowhere to turn should their domestic systems fail them. South Africa should instead be pushing for constructive amendments to the system and working to improve the efficiency and reach of the ICC.

Those calling for South Africa’s withdrawal are too quick to forget that the African votes were instrumental in the creation of the court and that some of South Africa’s leading struggle heroes, for example, Dullah Omar and Nelson Mandela, were highly influential in the crystalisation of the understanding that genocide, war crimes and crimes against humanity cannot be committed in impunity, hence the need for a permanent international accountability mechanism.

Throwing the baby out with the bath water is counterproductive and irresponsible given the strides South Africa has taken to build a constitutional democracy founded on the principles of justice and the preservation of human rights. Let the Supreme Court of Appeal ruling in the al-Bashir case be used as an opportunity for the South African authorities to recognise the folly of their ways and to renew their support for justice and accountability.

Angela Mudukuti is the International Criminal Justice Lawyer at SALC.