Governance Watch

Omar Al-Bashir: National interest plays second fiddle

Bashir has SA in ICC dock

The Bashir affair is not only becoming a diplomatic nightmare for South Africa, but also exposes to what extent national interest is playing second fiddle in an atmosphere of confrontational party politics, mistrust and sloppy strategising.

The situation, precipitated by President Omar Al-Bashir’s attendance of an African Union meeting in SA in June this year, is also exposing serious weaknesses in the way the International Court of Justice (ICC) is structured. It might still develop into a major crisis for the ICC, should it trigger a trend of African countries abandoning the Court.

In the world of international relationships and geopolitics, justice, politics and national interest of countries have never been easy bedfellows. It led to weakness in the Rome Statute setting up the ICC.

As we recently reported, it is especially the US which – unlike SA – has not ratified the Statute and has consistently used these weaknesses to sidestep the letter and spirit of the ICC on the basis of national interest.

We do not know the details of the SA government’s arguments in the appeal it lost last week against an earlier court order to arrest Bashir during his June visit, but one issue that should have been considered arises from Article 98(1) of the Statute. This article recognises the immunity of heads of states and governments from arrest and surrender to the ICC if they are not a party to the Statute.

Under this provision, non-state parties (as is the case with Sudan) are given the opportunity to waive the immunity of their state officials if they are to be surrendered to the ICC for investigation and possible prosecution. 

There might be an argument to be made that SA would have needed the permission of the Sudanese government to have arrested their head of state. Something that clearly did not happen and would have bordered on the absurd if it did. It also again illustrated the “legal mud pool” surrounding the ICC, as we described it in our previous article.

National interest

It is not difficult to imagine in what sort of diplomatic morass the SA government would have found itself if it did decide to go that route – that is, if they even considered the option beforehand.

What hardly brooks any argument is that it is not in South Africa’s national interest to allow itself to end up in confrontation with most of the rest of the Africa over the status of the ICC.

Under the circumstances, which turned out to be a no-win situation, there are a number of diplomatic and even legal options SA could have considered:

  • It could have attempted to persuade Bashir not to attend the conference – as now seems to have happened with his plans to attend a United Nations session in New York;
  • Asked for the conference to be moved to another African (non-ICC party) country; and
  • It would probably also have been wise to, beforehand, have approached both the South African courts and the ICC to seek legal clarification. Depending on the outcome of that, it would have given credible grounds for diplomatic moves, as suggested above, or avoided the confrontation with the South African judiciary and the ICC now taking place.

The bottom line is that the way things panned out indicates some very sloppy strategic thinking and planning by the SA government.

Domestic reaction

The domestic reaction, especially by the main opposition parties, to the initial events and to the court’s rejection of the government’s leave to appeal, speaks to what extent:

  • Party political interest has come to take precedent over national interest;
  • Confrontation politics has become the order of the day;
  • General mistrust has become a hallmark of the Zuma administration;
  • There is an absence of efforts to build consensus over domestic dividing lines when it comes to matters of national interest; and
  • The country seems to be losing its sense of an overarching national identity.

Sadly, a practice which seems to have gone missing is that on matters of national interest the government keeps the leaders of opposition parties informed on a confidential basis. It was a practice well established under the previous constitutional dispensation during the days of economic sanctions and a precarious security situation.

It was a practice not without moral hazards for opposition leaders. The late Dr Frederik van Zyl Slabbert told me in a personal conversation how his resignation from parliament and as leader of the opposition was triggered by him discovering that a senior cabinet minister had misinformed him during such confidential discussions.

The days of economic sanctions and a domestic security threat are gone, but under the present global economic conditions and the building up of tensions on the geopolitical front, international relations surely are of enough national interest for government to keep opposition leaders in the loop.

Immediate future

And the nightmare is not over yet. Bashir is set to be an attendee at next month’s meeting of the Forum on Africa-China Co-operation to be held in South Africa. Besides the formal legal implications, just imagine what would happen if an NGO decides to try to execute a citizen’s arrest of Sudan’s president.

Besides moving fast if they intend petitioning the Supreme Court of Appeal directly on the matter, after having been refused the right of appeal, the government needs to sharpen its strategic pencils thoroughly and quickly.

All-in-all the Bashir affair is cause for reflection, not only by the SA government, but also by the ICC regarding its own messy legal and structural framework.

by Piet Coetzer

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