An opportunity lost to make history by arresting Bashir

BY MIA SWART, 19 JUNE 2015, BUSINESS DAY (SOUTH AFRICA)

THE world held its breath in the aftermath of Judge Hans Fabricius’s order last Sunday preventing Sudanese President Omar al-Bashir from leaving the country. Would SA go where no state has gone before and arrest a sitting head of state for war crimes and genocide?

For a fleeting moment, a breakthrough seemed possible. But the South African government again wasted no time to show that its loyalties do not lie with the good guys in the international community. For this government, human rights and the cause of international justice remain subservient to its brand of African diplomacy.

The closest the international community came to arresting a head of state was when retired general Augusto Pinochet was arrested by order of a Spanish magistrate in October 1998. Pinochet was arrested for crimes committed in Chile between 1973 and 1990. This was the first time European judges had applied the principle of universal jurisdiction and represented a dramatic leap forward for international criminal justice.

But the analogy between the iconic Pinochet case and Bashir does not end here. About 15 years ago, former US secretary of state Henry Kissinger came under fire for his role in the 1973 military coup in Chile. As national security adviser, Kissinger was one of the principal architects of the 1973 coup that led to the overthrow of democratically elected president Salvador Allende and facilitated the dictatorial rule of Pinochet.

US commentators speculated that Kissinger should desist from travelling in case he be arrested abroad. But arresting Kissinger was as fantastical as imagining the arrest of George Bush or Condoleezza Rice. Unsurprisingly, the US has steadfastly refused to sign the Rome Statute.

Had the South African government obeyed a court order to arrest Bashir, SA would have made history. It would have been the first country to arrest a sitting head of state accused of international crimes. This would have been a dramatic step forward for the fight against impunity and for the recognition of the obligations under the Rome Statute. For hundreds of years, states have signed international treaties and conventions only to ignore them in practice.

Observing the court order would have shown that SA takes its obligations under the Rome Statute seriously and that its thinking on international law is no longer the product of apartheid history. Under apartheid, the government routinely ignored international standards and conventions. Honouring the order would have affirmed SA’s leading role in Africa in terms of support for the Rome Statute system.

SA was instrumental in encouraging its neighbours to sign the statute. It is impossible to describe the magnitude of the opportunity lost by its decision to escort Mr Bashir to Air Force Base Waterkloof.

But no serious international lawyer or acute political observer would have believed that the government would play ball. Its track record in this regard has consistently shown flagrant disregard for the principles upon which the Rome Statute system was built. Zimbabwean President Robert Mugabe often graces official events in SA. No one has tried to arrest him. SA has also provided a safe haven to Rwandan war criminals and war criminals from other parts of the world. Most disturbingly, the incidents of police brutality and police torture over the past few years warrant the activation of our obligations under the Rome Statute. SA should urgently prosecute torture by the police as an international crime.

International law moves slowly if it moves at all. In the groundbreaking Filartiga case on the prosecution of torture, a US court stated that international law is not static but dynamic and can evolve over time. The court order by Fabricius undoubtedly represents a step forward for international law in SA and globally.

The question of arresting a sitting head of state lies at the heart of the continuing tension between the African Union and the International Criminal Court (ICC). This tension was first triggered by the ICC’s position on Bashir after an indictment was issued in 2009 to arrest him on charges of war crimes and crimes against humanity.

The United Nations Security Council used the power it is granted under the Rome Statute to refer the situation in Darfur to the ICC prosecutor. The council not only granted the ICC jurisdiction over the Bashir matter, notwithstanding that Sudan is not a party to the statute, it also obliged Sudan to co-operate with the court and the prosecutor, who would eventually demand the surrender of Bashir.

The security council also urged all states and regional and international organisations to co-operate fully with the resolution in this regard.

By 2013, the tension between some African countries and the ICC had reached a crisis point. The issue of immunity for heads of state had become the main point of contention between the two sides. Some believe the adversarial stance has been channelled through, and encouraged by, the AU, which has gone as far as requesting its members to implement a policy of nonco-operation with the ICC in respect of the arrest and surrender of certain suspects.

Even if they should decide to withdraw from the ICC, individually or en masse, African countries that were state parties to the Rome Statute would still be held to their obligations thereunder for some time. As members of the international community, such African states would have obligations to prosecute heads of state for international crimes in terms of ius cogens norms (a fundamental principle of international law accepted by world states as a norm from which no derogation is permitted) and customary international law.

The ICC is a groundbreaking, historical and diplomatic achievement. Disrespect for the principle of the irrelevance of official capacity for heads of state can do tremendous damage to the Rome Statute system. African countries should not be supported to swim against the stream of international criminal justice. Withdrawal from the ICC system, which they joined voluntarily, will not make African countries any more powerful in the international arena.

The fact that Africa has remained the only site of ICC prosecutions remains problematic. But the argument that the legacy of colonialism and US interventionism means that no state has clean hands, and that obligations under the Rome Statute can therefore be ignored, should not wash.

Kissinger has long lamented the world’s unwillingness to accept that global affairs essentially consist of the struggle for advantage among states. The ICC system presents the opportunity to move away from a Kissinger-centred view of international relations to viewing foreign relations in a fresh, more aspirational way. The ICC system aspires to create a world in which the international community encourages states to act in the interest of international peace and in the interest of humanity. Let the cynics not detract from this cause.