The Al-Bashir file

South Africa a prisoner of global contradictions

How relevant is the ICC really?

With what has happened around the fugitive head of state Omar Al-Bashir puts much more than just the South African government and the country’s reputation in the dock, with his victims probably the only ones innocent.

While South Africa has received much negative attention as Al-Bashir slipped the net of the International Court of Justice (ICC), it was probably itself the victim of a seriously flawed global ‘justice system’.

The whole affair also exposed the arrogance of power in the community of nations, with no viable instruments to truly hold powerful nations and their leaders also accountable.

In this regard, consider the fact that some of the sharpest criticism of how South Africa handled the affair emanates from the United States, a country that is one huge step behind South Africa in terms of recognising the status of the ICC.

The ICC, in the process, has been exposed as not much more than a platform for diplomatic image-making, dressed up as a court of law.

Internationally the ICC now faces a crisis with regard to its status and relevance.

Fundamental questions

Some very important fundamental questions have come to the fore, questions that sadly remain largely ignored as a game of political point-scoring is playing itself out on both the international and domestic fronts.

Most basic and fundamental of these questions is: Is it possible to have an international justice system, upheld by a formal judicial structure, without the supporting/complementary instruments that normally would go with such a construct – a world government?

Besides the practicalities of law-enforcement instruments and how it is ensured that such a ‘world government’ has a democratic basis, for millions of people across the world the concept of ‘world government’ also has strong religious undertones.

Another very important fundamental, but also very practical, issue that came into play in the Al-Bashir affair, is: Where does the dividing line, if any, lie between the authority of the ICC and the sovereignty of individual states? 

It is exactly on the question of sovereignty that the dividing line between the US and South Africa and their respective relationships with the ICC in legal context lies. Both are signatories to the international agreement that created the court, but South Africa ratified it by incorporating it into its domestic codified law, via legislation in parliament. The USA has not.

The argument of US legislators is that such a law would be unconstitutional, because it would impinge on the sovereignty of the USA.

For a full perspective, it is important that South Africa’s ratification of the agreement should be judged in the context of the time in which it had happened. South Africa, under the leadership of Nelson Mandela, was just emerging from apartheid and the legislation was probably in South Africa’s best interest to help cement its new international status and image.

New circumstances

Since then, the international environment in which South Africa has to conduct its affairs has changed dramatically. ‘Best interest’ must now be judged in a much-changed and more complicated context.

There are probably solid grounds to argue that the South African government was in conflict with the constitution when it, in the face of a court order to the contrary, at best allowed and at worst assisted Al-Shabir to depart from the Waterkloof Air Force Base.

For the sake of legal clarity it is probably best for this question to be addressed in the Constitutional Court. For the sake of balance it would also, however, be important to now test the constitutionality of having a law on the statute book that might be diminishing the country’s sovereignty.

Then there is also the question of the relative weight of such domestic legislation in relation to other international law requirements, like granting immunity to participants at events sanctioned by bodies like the United Nations and the African Union.

Best interest

When judging South Africa’s conduct in the affair, international and domestic NGOs and activists, should interrogate their own reactions in the full context of the day.

One of the questions they should answer for themselves is if it would have been in the best interest of the victims of the conflict in Sudan to blow Deputy president Cyril Ramaphosa’s peace-negotiating efforts in that country out of the water – as the arrest of Al-Bashir in South Africa would certainly have done.

As for domestic groups, and especially opposition parties, caution should be employed not to succumb to the temptation of scoring petty political points. Sight should not be lost of the bigger issues listed here – and it is not nearly an exhaustive list.

The details are still murky, and the full truth might never be known, because it gets lost in assessments made under pressure in a conflict zone, but they should ask themselves: How would they have reacted if one of the options available would have meant endangering the lives of 800 South African soldiers.

It is clearly a situation where loyalty to the country and its best interests should override possible short-term party-political gain while the country is prisoner in a jail of international contradictions.

by Piet Coetzer

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