This morning (June 15, 2015) Omar al-Bashir, President of Sudan, was allowed to leave South Africa despite a pending arrest warrant from the International Criminal Court charging him with multiple counts of genocide and massive crimes against humanity. Since South Africa is a party to the Rome Statute that created the ICC, the government of South Africa was legally obliged to surrender al-Bashir to the Court's jurisdiction. That agents of the government failed to do so not only violated South Africa's international legal commitments, but its own constitution: the government's decision to allow al-Bashir to fly back to Khartoum defied a court order that would have obliged a legal review of South Africa's treaty obligations in light of al-Bashir's presence in the country. The order, following an application from the Southern Africa Legal Centre, was issued specifically to prevent al-Bashir's departure before a judicial review of the applicant's arguments (the court documents may be found here).
Many around the world--including many who stood by South Africa and the African National Congress of Nelson Mandela during the dark days of apartheid--are shocked and dismayed at the decision by the ANC, as the governing party, to side with an indicted génocidaire over the fully justified claims of international justice. This disgraces Mandela's legacy, reveals the ANC and President Jacob Zuma in particular as falling further into the pit of political corruption and disregard for the rule of law, and tarnishes South Africa's international standing. It should be noted as well that there was strong opposition to al-Bashir's presence in South Africa, coming from many of the country's human rights and civil society organizations, as well as journalists and academics.
This shameful episode also brings into high relief the character of the African Union, whose summit al-Bashir was attending. Over the past thirteen years, an organization nominally representing an effort to do away with the corruption and political high-handedness that defined the old Organization of African Unity has largely reincarnated those very failings. It is little more than another "old boys" dictators' club, with Robert Mugabe of Zimbabwe as its all too representative president. As many in Africa and outside the continent have observed, the African Union seems much more interested in furthering various political interests (including self-preservation) than human rights and the concerns of ordinary citizens of the 54 countries that make up the AU.
The AU leadership, specifically the African Union Peace and Security Council, has actively encouraged contempt for the ICC, and has declared that ICC jurisdiction does not apply to African countries, even those that have signed the Rome Treaty. There are efforts within the AUPSC to have all African countries withdraw from the Rome Treaty en masse. This increasingly hostile attitude is the primary reason Sudan's president has been able to travel so widely internationally in African countries, several Arab countries, and other countries as well (e.g., China, Iran). Most of those to which al-Bashir has traveled are not party to the Rome Statute, although some--Kenya and South Africa, for example--are.
Understanding this, the South African government reportedly offered al-Bashir "back-door" immunity from ICC arrest, promising him behind the scenes that he would not be seized while in South Africa. Evidently not much thought was given to the prospect of having to engage in unconstitutional acts, including defying the country's judiciary, in order to make good on this promise. But we may also be certain that the leadership of the Africa Union knew full well what was going on behind the scenes, and saw no problem in encouraging any illegal activity that might occur. The AU leadership's growing contempt for the ICC as an institution has become de facto "African policy."
Such open flouting of constitutional obligations by the ANC government is a terribly destructive consequence of the decision not to arrest al-Bashir. Moreover, we must consider that this destructiveness was understood in advance, and accepted as the price to pay for hosting the 25th African Union summit. Pushback from the court system was immediate, but as of this writing al-Bashir has already landed in Khartoum amidst quickly orchestrated pomp and celebration.
The "Independent On Line" (June 15, 2015, South Africa) gives us a sense of the crisis created by the ANC-led government:
The High Court in Pretoria has demanded an explanation as to why Sudanese President Omar al-Bashir was allowed to leave South Africa on Monday, despite an interim court order barring him from doing so. "We request an affidavit to be filed with the registrar of this court within seven days, disclosing the time when he left, the port of entry or exit that he used," Judge President Dunstan Mlambo told the government's legal counsel, advocate William Mokhari. "It is of concern to this court that it issues orders and then things just happen in violation of those orders. Be that as it may, that is an order we issue under the circumstances."
It is difficult to estimate the damage done to the South Africa's traditional respect for the rule of law and the ICC itself with this egregious breech of treaty obligations. Certainly the government of South Africa knew that is was creating problems for itself. Indeed, in a last-ditch and desperate effort to insulate itself from those obligations,
on Friday the South African government ... asked the ICC for an exemption from its obligation, on the grounds that Bashir enjoyed immunity from prosecution as he was attending an AU summit, and was therefore in the country as a guest of the AU and not South Africa.
But turned down by the ICC, the ANC--the ruling party in the South African government--wanted it both ways: the ANC National Executive Committee declared yesterday (Sunday, June 14) that the ICC was "no longer useful for the purposes for which it was intended," and that this justified their refusal to honor treaty obligations. "Ask for an exemption -- but don't take no for an answer," seems to have been the governing thinking.
What would the ANC and the AU put in place of the ICC by way of addressing the need to bring to justice those who commit large-scale atrocity crimes? We got a clear answer last year, at a July 2014 meeting of the AU:
A Pan-African court set up to prosecute the continent's worst criminals will not be allowed to try sitting heads of state or their cronies after they voted to give themselves immunity. The continent's leaders agreed [to] their [own] exemption at a closed-door session of an African Union meeting, and then tried to bury the decision in an obscure paragraph of the post-summit communiqué. The decision was a "backward step in the fight against impunity and a betrayal of victims of serious violations of human rights," said a spokesman for Amnesty International. More than 40 activist organisations had opposed the move. (New Zealand Herald, 3 July 2014)
So much for the birth of the "African Court for Justice and Human Rights."
There is an ongoing debate about the merits of retributive, as opposed to "restorative," justice. The arguments for restorative justice are not simple, and often reflect both pragmatic attitudes about ending violence and traditional methods of achieving justice through reconciliation of victim and victimizer. But the argument seems wholly inappropriate when speaking about someone like Omar al-Bashir, who is of course protected under the new "African Court for Justice and Human Rights." Here is a man who has presided for 25 years over a regime that has engaged in serial genocide: in the Nuba Mountains in the 1990s, in South Sudan at various points in the long civil war (1983 - 2005), and now again in Darfur (for the past twelve years) and South Kordofan and Blue Nile states.
There is no imaginable "restorative" justice that is appropriate for dealing with the massive crimes committed by the tyrannical al-Bashir regime. He has been president of Sudan since the military coup that brought the National Islamic Front (later the National Congress Party) regime to power. Millions of lives have been lost in greater Sudan since the NIF/NCP seized control of all military and political power in Sudan; many more millions millions have been displaced; and the country of Sudan has endured a perpetual struggle between the poor, terribly marginalized regions and the center that is Khartoum and riverine Sudan.
If after twenty-five years of war crimes, crimes against humanity, and genocide retributive justice is not called for, then it never will be. But it is irresponsible fantasy to believe that ruthless dictators and military leaders in Africa, if they feel they are insulated from prosecution, will not see this as a license to kill and engage in the most ruthless schemes of self-enrichment. The evidence for this is simply overwhelming, whether we look to Sudan, Chad, DRC and its neighbors, Eritrea, Libya, Zimbabwe, along with many others.
South Africa's refusal to arrest al-Bashir has moved the continent a step further toward accepting this dangerous fantasy, a fantasy that continues to be assiduously cultivated by the African Union Peace and Security Council for selfish, not principled reasons. This development is inevitably destructive of the ambitions for justice on the part of the ICC, currently led by an African woman, Gambian jurist Fatou Bensouda. The disgrace, and consequences, of the unconstitutional and treaty-abrogating decision by the ANC government of South Africa will not soon dissipate.
[Eric Reeves, a professor at Smith College, has published extensively on Sudan, nationally and internationally, for the past sixteen years. He is author of Compromising with Evil: An archival history of greater Sudan, 2007 - 2012 (September 2012)]