A Hasty Departure

It started like the final chapter of a thriller.  Tipped off that the police were on to him and that a warrant was being issued for his arrest, the criminal mastermind makes his carefully prepared getaway.  His bags are packed, a car is waiting.  He knows the police are close behind. He sets off for an out-of-the-way airfield where a private jet is already preparing for departure.  Surely some twist of fate will thwart the villain’s plans at the last moment?  And, indeed, as he reaches the runway, the police catch up, jump from their vehicle and …... shake his hand and wish him a pleasant trip home.

Thus Omar al-Bashir, president of Sudan, departed South Africa on Monday from the Waterkloof Air Force Base ahead of a court order for his arrest for crimes against humanity to be tried by the International Criminal Court.  Coming to power in 1989 in a military coup, al-Bashir has ruled Sudan since then. The struggle between South Sudan and Sudan was protracted and bitter, and since South Sudan's independence, al-Bashir has been accused of destabilizing his neighbor and overseeing the war in Dafur that led to hundreds of thousands of deaths and huge numbers of refugees.  The situation remains critical.

The International Criminal Court (ICC) began operating in the Hague in 2002, established under the auspices of the United Nations.  Not all member states recognize its authority and doing so is voluntary. (The US has refused to be a signatory, for example.  Thus if Al-Bashir were to visit the US he would be safe from arrest.  Needless to say, Sudan doesn’t recognize it either.)  But South Africa does recognize the ICC, and it’s easy to understand why.  South Africans have been down the road of racial repression and dictatorship, and our constitution is aligned with human rights and the aspirations of freedom and democracy.  Not only did South Africa sign the treaty, but it voluntarily built the strictures of the ICC into its own law.  Thus to ignore a warrant from the ICC is an illegal act in South Africa, whatever the merits or otherwise of the particular case.  So by allowing al-Bashir into the country and thereafter allowing him to leave, the South African government was breaking its own laws as well as flouting its international undertakings.  Bishop emeritus Desmond Tutu fulminated that allowing al-Bashir in spoke volumes about South Africa's moral fabric, as it had on three occasions denied entry to the Dalai Lama.  The Desmond & Leah Tutu Legacy Foundation in its statement said “if the world is to become a fairer, more compassionate, tolerant and peaceful place” it needed institutions like the ICC “to hold those who abuse power to account.”

So how did this come to pass?  In the first place, South Africa wanted to host the African Union meeting.  In the second place, al-Bashir has many supporters in that organization.  In the third place, leaders demanded that their freedom and safety would be guaranteed in South Africa.  South African President Zuma promised them immunity from prosecution.  At that point, he broke his own government’s laws and is in contempt of the High Court.

Zuma's party, the ANC, recently tried to have leaders in office made immune from prosecution by the ICC, but the ICC rejected that.  The ANC has now said that the ICC is no longer useful to prosecute crimes against humanity. Almost simultaneously, its own policy body called on all members of the UN to be signatories to the authority of the ICC.

That’s the rub.  While powerful states exempt themselves and their leaders from international authority, it's easy for the others to make spurious arguments about victimization.  Worse, all the ICC's recent prosecutions have been of African leaders; this can immediately be argued to be bias and racism. In Tutu's statement he also said that the world “needs a criminal court where all are held equally to account, regardless of their nation's wealth, geographic location or particular history.” 

Why is this a big issue for South Africa?  It’s very simple.  For the first time since the Mandela presidency, the South African government has flouted its own law, and will certainly get away with it.  Once a government takes the first step down that oily slope, there is little preventing it slipping all the way to the bottom.

Michael - Thursday