Non-compliance: Why South Africa’s penance should be brief and painless
By Ishmael Bundi
Last week at The Hague, South Africa finally got a chance to explain its failure to arrest wanted Sudanese president Omar al-Bashir back in 2015. The timing could have been better. A combination of unexpected political and economic developments conspired to present South Africa before the International Criminal Court (ICC) when the “Rainbow nation” wasn’t feeling particularly good about itself.
That perhaps accounts for some of the spirited defence that Sandra de Wet, the chief state law advisor, and Professor Dire Tladi, advisor to the minister of international relations, brought to the proceedings. By all accounts, the five-member South African legal team gave a spirited defence of its refusal to arrest Bashir when he attended an African Union summit in June 2015 in Pretoria despite two pending arrest warrants.
Professor Tladi, making the legal case, said South Africa like other ICC member-states that had hosted Bashir had no legal obligation under its laws to arrest the Sudanese leader.
"There is no duty under international law and the Rome Statute to arrest a serving head of state of a non-state-party such as Omar al-Bashir," he said, adding that Article 27 of the Rome Statute which contradicts this argument only applies to cases already being tried before the ICC.
ICC Prosecutors, led by Julian Nichols, gave as good as they got. Nichols urged judges to find that South Africa had been non-compliant in the Bashir cases because not doing so would imperil the expectation of cooperation between the ICC and member states:
"Without cooperation from the state parties in the arrest and surrender (of suspects) the court will be unable to carry out its most basic function," Nicholls told the Chamber led by presiding judge Cuno Tarfusser.
Urging the judges to refer South Africa to the United Nations Security Council or the Assembly of States Parties to the Rome Statute, prosecutors accused South Africa of casting about for “contradictory” legal positions even after losing the battle in domestic courts.
The Trial Chamber will make public its decision on the matter of South Africa’s compliance with its obligations to the ICC at some point in July.
According to Kaajal Ramjathan-Keogh, the Executive Director of the Southern Africa Litigation Centre, it's no mystery which direction the judges are likely to lean:
“…despite the brave defence it put up, it is inevitable that the Court will arrive at a decision that despite their efforts to cooperate South Africa failed to comply with its international obligations to the ICC.”
Kaajal also thinks that South Africa will get off easy if it's referred to the UN Security Council for non-compliance:
“It is also likely that the UNSC in the case of South Africa – if it is found to have been non-compliant; will also take no steps to reprimand and sanction South Africa.”
A brief and painless penance
What Kaajal is describing, in my view, is the ideal outcome of South Africa’s big day at The Hague: a referral to the United Nations Security Council or the Assembly of States Parties (ASP) which emphasises mercy and compromise instead of sanctions and retribution.
Here are the three reasons why I think a brief and painless penance for South Africa would be the best way of securing the ICC’s future:
1. ICC withdrawal is no longer a priority for South Africa. Let’s keep it that way
According to South Africa’s Ambassador to the Netherlands Bruce Koloane, the Jacob Zuma-led government is currently of two minds about withdrawing from the ICC.
“I’m not sure if we’ll be starting the process of withdrawing from the court again. All I know is that there is currently a debate, and there are people who are proponents of withdrawing from the court and there are those who are not,” he told Carien du Plessis of The Daily Maverick.
Given the tumult in the country, Koloane also thinks that ICC withdrawal has moved considerably down the government’s list of priorities:
“It [the ICC repeal Bill] would have to be tabled in Parliament for a discussion, and I’m not sure with all the other issues and pressures going on at home, that it is a priority in the bigger scheme of things,” he said.
As an important member of the ICC family, it would be a big blow to The Hague court if South Africa again climbed aboard the “withdrawal” train. This explains why countries like Canada are working behind the scenes to keep South Africa on-side. At a time of economic uncertainty, it would be counterproductive for the ICC to push the UN Security Council to impose punishing sanctions on South Africa. The best compromise here is what I suggested in my previous piece for Justice Hub; for the ICC to try a little tenderness through the Assembly of States Parties (ASP) clarifying and reviewing the position on immunity for heads of state.
2. President Omar al-Bashir want’s to inflame Africa’s sense of grievance against the ICC. Don’t give him the satisfaction
President Omar al-Bashir likes to stir up trouble for the ICC. In fact, besides actively lobbying African countries to quit The Hague-based court, he is now also encouraging the formation of an African court to replace the “colonial” ICC:
“Africans are convinced that the ICC is a colonial tool. This requires the founding of an African court to achieve justice that is based on evidence, not fabrication and political considerations,” said Bashir upon returning from a controversial trip to Jordan.
Rights groups are trying to get Zambia get off the path of rethinking its future in the ICC. According to the president of the opposition All Peoples Congress (APC) party Nason Msoni, the reason Zambia all of a sudden seems so keen to ditch the ICC is the government is being directly influenced by Bashir:
“Mr. Lungu’s desperation in trying to withdraw Zambia from the ICC is extremely worrying. This is giving credence to the assertion that money may have exchanged hands to facilitate the withdrawal. Resorting to using ghost Zambians to build consensus is criminal behaviour and is tantamount to rigging the outcome,” said Msoni.
Though it’s not clear whether Bashir is really nudging Zambia along, what’s for sure is the Sudanese leader takes special pleasure in thumbing his nose at The Hague Court by going on trips to ICC member states. This is not an observation made as a result of a single trip but a series of high-profile ones that have painted a coherent picture.
If South Africa attracts economic sanctions as a result of the Bashir visit then he will doubtlessly use this fact to further inflame the sense of grievance that some African Union (AU) countries have against the ICC. Don’t allow Bashir to benefit from his destruction. Make South Africa’s penance brief and painless.
Those member-states within the African Union (AU) that are against the collective ICC withdrawal push believe it’s possible to reform the Court from the inside. The best way to reward these countries (like Nigeria, Botswana and Senegal) is to demonstrate that the Court is not as tone deaf as some people say but is indeed capable of listening.
Image: The Presidency of the Republic of South Africa/Facebook