Nothing ‘fun’ about SA’s Bashir experience

South Africa's membership to the ICC risks undermining the country's sovereignty. The Omar Al-Bashir saga in South Africa is a case in point, says the writer. File photo: Kim Ludbrook

South Africa's membership to the ICC risks undermining the country's sovereignty. The Omar Al-Bashir saga in South Africa is a case in point, says the writer. File photo: Kim Ludbrook

Published Jul 1, 2015

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Eddy Maloka slams Eusebius McKaiser’s "coffee table knowledge" of the Omar al-Bashir matter.

Eusebius McKaiser makes “fun” of our Al-Bashir experience but I struggled to find anything amusing except for the coffee table knowledge of the subject matter which is displayed in his article ( “Six poor defences of Bashir’s escape”).

He draws parallels between arresting a rapist in a country to arresting a sitting head of state of a sovereign state!

The African Union's position on the abuse of the principle of universal jurisdiction that stressed the need for international justice to be conducted in a transparent and fair manner in line with the principles of international law, is ridiculed and trivialised because “the Blair-Bush-Bashir analogies are badly thought through”. It's understandable because according to him, “the African Union has been useless for years now”; and, without checking or nuancing his facts, he goes on to claim that the AU has no alternative to the ICC nor a mechanism for rapid response when international crimes are being committed.

The Al-Bashir matter has raised a number of issues pertaining to our relationship with international organisations and the nature of our domestication of international instruments. South Africa found itself in the middle of conflicting obligations to the ICC's Rome Statute on the one hand, and the obligations emanating from our membership of the AU on the other. States should not find themselves in such a dilemma and indeed the Rome Statute foresees this and makes provision for a waiver in Article 98. South Africa tried to invoke this waiver and approached the ICC, but unfortunately the bureaucrats at the Hague decided against us.

Our courts entered this debate with a judgment which juxtaposed “international law” to “regional affiliation” (that is, the AU) in a manner that excluded the latter from the former and arrived at the conclusion that “Decisions of the African Union cannot trump South Africa's obligations under the Rome Statute”. The court's thinking in this judgment sees international obligations emanating from African regional instruments as inferior, while treating international law unproblematically when the study of international relations has several competing theories each purporting to be the best.

International law reflects the international system that gives birth to it which, in our case, is based on power and might, and has behind it a long history of colonial power relations and the North-South divide.

Our international law protects and sometimes even exempts the powerful while being harsh and uncompromising towards the likes of Africa. The behaviour of the ICC that targets only Africans and turns a blind eye to international crimes committed elsewhere in the world is just one reflection of the nature of our international system and the law it purports to uphold.

The court made two rulings which are weird to an uneducated kind like me.

The judgment excludes “heads of state” from the category of “delegates” granted immunity in Government Gazette 38860 of 05 June 2015 in terms of the Diplomatic Immunities and Privileges Act of 2001. The court also reduced the Government Gazette in question into some non-law without any force, when in fact Article 7 (2) of the Diplomatic Immunities and Privileges Act states that “The Minister may... confer such immunities and privileges on a person or organisation as may be specified by notice in the Gazette.”

To its credit, however, the court in its judgment, makes a point that many commentators have ignored - that government could have been open about the international imperatives preventing it from complying with ICC dictates.

While the judgment indicates that the court would have ignored such an argument as it fell outside its mandate in terms of the separation of powers, it nonetheless made the point that: “We are further impelled to state that as a court of law we are obviously the wrong forum for the ventilation of regional and international policy considerations... We however find it prudent to invite the ICC to take cognisance of the issues that arise in this matter.

As we demonstrate in this judgment, South Africa is not the only Rome Statute signatory that has failed to carry out its duties in terms of that statute when it could have done so based on a conflict between its regional affiliation on the one hand and its broader international obligations on the other.”

McKaiser doesn't find such a reflection warranting any attention because “this thing of citing the diplomatic card, as if doing so constitutes an argument, doesn’t wash”.

The AU is not inferior to the ICC as the likes of McKaiser would like us to believe.

On the contrary, the AU is a powerful regional organisation backed up by various organs like the Peace and Security Council and the Pan African Parliament and supported by at least eight regional economic communities.

By contrast, besides its 121-member states and an annual budget of over 100 million euros, the ICC has little to show.

In December 2014, David Davenport opinioned in Forbes under the headline: “International Criminal Court: 12 Years, $1 Billion, 2 Convictions”: that “the obvious question few seem to be asking is whether the ICC is simply too expensive and inefficient to justify... They say you can’t put a price on justice but $500 million per warlord conviction seems high by any standard.”

South Africa is correct to have its immediate neighbourhood (SADC) and the rest of Africa as its priority. The position of the AU on the Sudan or post-election Kenya is informed by the balance required between lasting peace and security on the one hand, and justice and accountability on the other. This is a theme South Africa has chosen for its chairship of the AU Peace and Security Council in the month of July.

We were once faced with the same dilemma in 1994 and chose lasting peace, allowing architects of apartheid to walk scot-free.

Other countries have opted for justice and accountability, but to this day many of them are still trapped in the middle of an unending cycle of political instability and violence.

The reaction of the AU to the recent arrest of Rwandan intelligence chief in the UK gives us a hint of how the continent would have reacted to our arrest of Al Bashir.

The summit which was in session in Sandton would have grounded to a halt to deliberate on this development and a strong statement with a set of demands directed at South Africa would have been an inevitable outcome.

Dlamini-Zuma, a South African, would have been in an untenable situation as the chairperson of the AU Commission. In terms of the accepted diplomatic practice of reciprocity, Sudan would have been entitled to retaliate. Our embassy staff and their families in Khartoum would be a low hanging fruit in this regard; and our troop deployed in Darfur a sitting duck.

Thabo Mbeki's high-level panel would be severely affected, as well as Cyril Ramaphosa's shuttling around the Horn and East Africa as special envoy on South Sudan. The bottom line: Sudan would regard South Africa's action as a declaration of war.

If in the end South Africa exits the ICC, the blame should be put on ICC's bureaucrats at the Hague who have placed our ICC membership as an albatross around our neck, putting our country in the vortex of the infamous dilemma of “you are either with us or them”. Membership of an international organisation should not be this burdensome on a country.

South Africa was active in the establishment of the ICC because we thought the body would help advance our agenda to transform and democratise the international system. Instead, and to our disappointment, the ICC has come to reflect this untransformed international system with its one-sided and undemocratic tendencies.

There is a lesson to draw here on how in future we should handle the domestication of an international instrument like the Rome Statute. AU statutes and decisions are domesticated through reporting and sometimes the designation of focal points. If we are to domesticate through an Implementation Act of Parliament, like with the case of the Rome Statute, we should always have a national interest rider to prevent a situation where the fate of our country would be put in the hands of an international civil servant pushing paper at some distant capital far away from our country.

Where there is a conflict or incompatibility with an international instrument, our national interest must take primacy and prevail. After all we join international organisations in good faith to be a responsible member of the international community, but not to hold our country to ransom or prevent ourselves from giving effect to our priority programmes, like the implementation of the African Agenda.

South Africa should join in the mobilisation of the ratification of the 15 countries required for the entry into force of the Protocol on the Statute of the African Court of Justice and Human Rights, whose mandate will include international crimes.

The Constitutive Act of the AU provides for intervention in Article (h) for international crimes. This court, together with ACIRC which will soon be operationalised as the AU mechanism for rapid response to crises situations, will constitute the African architecture responsible for international crimes on the continent.

I don't share McKaiser Afro-pessimism and his Afrophobic dismissal of the motto “African solutions to African problems”. The Sandton summit of the AU took a strong stance on self-reliance, and this must be implemented on all fronts.

* Eddy Maloka is the special adviser to the Minister of International Relations and Co-operation and South Africa's special envoy on the Great Lakes. He's also a member of the ANC national executive committee sub Committee on International Relations. He writes in his personal capacity.

** The views expressed here are not necessarily those of Independent Media.

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