The Al-Bashir file

National interests rule, not the ICC

Al-Bashir and his fleeing machine
Omar+al-Bashir.jpeg

South Africa might have provided the final tipping point that put the International Criminal Court into deep crisis, but the problem has been developing for some time and lies elsewhere.

While the events surrounding the arrival in, and departure from, South Africa of the ICC-indicted President Omar Al-Bashir of Sudan confront the country with some serious questions, there are much wider factors at play. There are also some positives coming from the incident.

Root of the problem

Ironically the immediate problem was precipitated by two other original signatories of the Rome Statute, which, unlike South Africa, have since declared they do not intend ratifying the treaty and are withdrawing from the ICC dispensation.

The two seemingly strange bedfellows in this instance are Sudan and the United States, from where much criticism of South Africa’s conduct in this instance emanates. They are two of the only three initial signatory countries that totally pulled   out, Israel being the third.

There are also 30 more countries that have signed the Rome Statute, but have not yet ratified it with national legislation, with 123 states that are full-fledged parties to the Statute of the Court.

The position of the USA with regard to the ICC, coupled with an extremely chequered history when it comes to the matters covered by the ICC, like war crimes, and international systems in general, has done more than anything or anyone else to undermine the authority of the ICC.

The US effectively created its own custom-made independent structure to sidestep the ICC, probably best illustrated by the following summary from a Wikipedia article:  

  • The Bush administration in May 2002 informed the UN Secretary General that the US no longer intended to ratify the Rome Statute, and had no legal obligations arising from their former representatives’ signature of the Statute, its main objections being interference in US national sovereignty and a fear of politically motivated prosecutions;
  • The same year the US American Service Members’ Protection Act (ASPA) was passed, among other things prohibiting 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;
  • The US made 101 Bilateral Immunity Agreements (BIAs) with a number of countries, prohibiting the surrender to the ICC of a wide range of US officials,  military personnel, employees (including non-national contractors) and nationals; and
  • The US has cut aid to many countries that have refused to sign BIAs.

It is clear that the US deems it not possible to always align what it regards as in its national interest with the obligations to the ICC that would come with a ratification of the Rome Statute.

In 2002, 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 by the ICC and the UN Security Council passed Resolution 1422, granting immunity to personnel from ICC non-states parties.

That ‘national interest’ lies at the heart of the dilemma of affording the ICC independent, universally applicable authority is illustrated by the fact that this arrangement was again modified to permit US cooperation with the ICC when dealing with US enemies involved in UN-established or authorised missions.

The latter, however, lapsed in 2003 when the Security Council refused to renew the exemption when pictures emerged of US troops abusing Iraqi prisoners in Abu Ghraib, and the US withdrew its demand.

Can Africa be blamed?

Under these circumstances, can African states be blamed if they are cynical about getting a fair deal from the workings of the ICC, or if they also attach greater weight to their own ‘national interest’ than a purported international system of ‘justice’?

It is also an important background to keep in mind when judging the diplomatic and legal egg dance the South African government found itself in over the Al-Bashir affair.

There is ample room for argument over how cleverly the South African government boxed in that situation, where the first prize would have been finding an all-round face-saving way of preventing the now-fugitive president of Sudan coming to South Africa in the first place.

The moment he boarded the plane en route to South Africa, the government was in a situation of diminishing options.

As to why the South African government reacted differently this time than it did in May 2009 at the occasion of the inauguration of Mr Zuma as president, can only be guessed. Then Al-Bashir was not invited and a senior South African official said: “If he (Al-Bashir) does (attend) that will create a situation, and we will be forced to arrest him, and we won’t want that.”

The probable explanation lies therein that ‘national interest’ this time round, in the context of the occasion being a conference of the African Union, dictated differently. Another international treaty regarding immunity for those attending such occasions, presented the tiniest of gaps to be taken.

Malawi, being in a different position and probably fearing that its international aid might be threatened, in 2012 refused to host the AU summit because of the situation with Al-Bashir.

Nigeria, another member of the ICC, in 2013 received Al-Bashir with a full guard of honour – gun salute and all.

Egypt, however, probably in light of the US’s ASPA, in March this year, refused to receive Al-Bashir. As did Turkey, which in December 2009 withdrew an invitation to him to attend an Islamic conference under pressure from Brussels. It was at a time that Turkey was seeking membership of the European Union.

Real South African issue

The list of inconsistencies goes on and on and South Africa can hardly be singled out for having allowed pragmatism to take preference over the contradictory and confusing world of ‘international justice’.

What, however, does become a serious issue in the South African context, is the question of whether the South African government broke domestic law and violated the constitution by treating the High Court with contempt.

The finer details of what happened behind the scenes when Al-Bashir ‘fled’ from the country are not, and probably never will be, fully known, but it would seem as though again there was the narrowest of legal gaps.

The one positive is that, seemingly, the incident proved the vibrancy of organised civic society in South Africa when the Southern African Litigation Centre took the matter to court.

But when one studies the website of the SALC, the profile of those working for it and the less than fully transparent list of donors, it is not completely certain that this NGO is totally of the home-grown variety.

Be that as it may, it would be naive to just blindly accept that all NGOs active in areas intimately interwoven with world of international politics will always be free from manipulation or use by geopolitical forces.

This observer might be too much of a cynic, but has his doubts about what is the strongest driver of some of the biggest noise-makers in this instance: lofty principles and ideals of universal justice or the smell of political blood in the waters of Lake South Africa?

by Piet Coetzer

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