International Justice

Replay of Bashir affair brings fresh perspective

Bashir next heading for UN in New York?

A possible replay of the South African drama surrounding Sudanese president Omar al-Bashir in New York brings fresh perspective, if not clarity, on the South African government’s handling of the affair.

The announcement by the Sudanese government that President Bashir, who had an arrest warrant against him issued by the International Criminal Court (ICC), plans to attend meetings at the United Nations (UN) in New York later this month, again exposes the extremely complex international legal, moral, judicial and diplomatic devil’s brew involved.

As was the case for the South African government with his visit to the country in June for an African Union (AU) meeting, it is now the turn of the United States’ (US) government to face a no-win situation.

In exposing the lack of coherence and conflicting provisions in international law on matters like these, it also gives credence to arguments that the official opposition Democratic Alliance (DA) probably chose the wrong grounds for their attempt in parliament last week to impeach President Jacob Zuma.

It also exposes the selective morality of the US in matters involving the ICC when there is, for them, a conflict between what should be natural justice and what they deem to be in their national interest.

Legal mud pool

When it comes to the subject of immunity for state participants, especially heads of state, in the meetings of international organisations like the UN and the AU, the legal position is as clear as mud. Arguments over which one of often conflicting international agreements should prevail, could keep legal eagles going for days.

It is the key subject that will probably be before the court in South Africa in considering government’s appeal against an earlier ruling that they should have arrested Bashir when he was in the country for an AU meeting.

There is also a strong argument to be made that the DA should have waited for the outcome of that process before it mounted its impeachment move against Mr Zuma on the grounds they used.

It will probably also be the main issue in a US court if and when Bashir arrives in the US for a summit on sustainable development at the UN General Assembly. As was the case in South Africa, NGOs are preparing themselves to petition the courts should he arrive in the US.

Both the UN and the AU have agreements in place to ensure immunity against arrest for heads of states when attending their meetings.

Under the host country agreement between the US and the UN, dating back to the establishment of the UN headquarters in New York, the US government is obliged to issue visas to those attending UN meetings, with only rare exceptions if a particular individual would pose a threat to the US’s national security.

The agreement also prevents US authorities from imposing any impediments to transit to and from the UN’s headquarter district by representatives of member states. And the US government is required to issue visas as promptly as possible for government officials attending UN meetings.

While the US is a signatory of the Statute of Rome, requiring member states to arrest and hand over the likes of Bashir to the ICC, its congress – unlike the South African parliament – never ratified it to become part of domestic codified law. It was, however, party to a UN Security Council decision in 2005 to refer the case of Sudan to the ICC and to urge all countries to cooperate.

And then there are in the field of international law the Nuremberg Charter, the genocide convention and the ICC statute, all suggesting that heads of state have no immunity from charges before international tribunals.

On the domestic front the US also has the American Service-Members’ Protection Act, (SAPA) which authorises the executive branch “to bring to justice” those accused of atrocities.

National interest

Natural justice for those who are on the receiving end of the alleged atrocities perpetrated by Bashir suggests that he should appear in court, but national, security and diplomatic interests of nations often override such concerns.

In this regard the US has somewhat of a dodgy history. As Luis Moreno-Ocampo, the chief prosecutor of the International Criminal Court from 2003 to 2012, pointed out in an article in the New York Times last week: “A century ago, when more than one million Armenians were exterminated, the word ‘genocide’ did not exist. Killing millions of people was a domestic affair in which no foreign country could intervene.

Only after the Holocaust did this state of affairs change.

“In 1948, the United Nations General Assembly adopted a genocide convention, which rejected the idea that ‘rulers’ are immune from accountability for killing their people, and envisioned an ‘international penal tribunal’ to try them. It took until 1988 for the United States to ratify the convention.

“Ten years after that, in 1998, 120 countries voted to establish the permanent International Criminal Court to prosecute war crimes, crimes against humanity and genocide. The United States has not signed on.”

In 2002 the ASPA, among other things, prohibited military aid to countries that had ratified the Rome Statute, other than under an exception, and authorised the president to order military force to free any US military personnel held by the ICC.

It also forged 101 Bilateral Immunity Agreements (BIAs) with other countries, prohibiting the surrender to the ICC of a wide range of US officials, military personnel, employees (including non-national contractors) and nationals and cut aid to many countries that have refused to sign BIAs.

And the US went as far as threatening to veto the renewal of all United Nations peacekeeping missions, unless its troops were granted immunity from prosecution.

When US president Barack Obama visited Kenya in July he was greeted by Kenyan president Uhuru Kenyatta, a man who has been accused of crimes against humanity by the International Criminal Court. Only weeks later the US preached to China for receiving Bashir and to those heads of state who would be present at the same occasion.

Political decision

What for South Africa came into play in dealing with the Bashir affair in June were considerations like its relationship with the rest of Africa, the shaky relationship of Africa with the ICC and its economic interests on the continent.

Now, in September, considerations coming into play for the US include the fact that it needs Sudan’s cooperation in the fight against terrorism in that part of Africa and for the resolution of the ongoing civil war and humanitarian disaster in South Sudan.

Arresting President Bashir just might also trigger the final withdrawal from the Statute of Rome, which most of them have, unlike the US, ratified.

As in the case of South Africa, ultimately the US administration’s decision will be a political rather than a legal one.

The sad implication is the lack of concern for the victims. As Professor Hennie Strydom of the University of Johannesburg wrote in an article on The Conversation: “What is yet to emerge from these developments is a clear concern for the victims of the atrocities rather than the still dominant concern for the protection of political leaders.”

The Bashir situation and the uncertainty it created to the de facto status of the ICC, should compel the UN, and its SC in particular, to take a comprehensive look at all related international agreements with a view to putting in place a new comprehensive and overarching agreement to align existing conflicting arrangements in order to create legal certainty.

by Piet Coetzer

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