OPINION BY
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| ABIOLA AKINTUNDE |
Omar Hassan al-Bashir, who have continuously rejected the handshake of justice extended by the International Criminal Court (ICC), has once again escape the court responsible for prosecuting war crimes. Bashir, who travelled to Johannesburg for a summit of African leaders, is wanted by the UN-backed court for alleged atrocities, including genocide, committed during the Darfur conflict. The urge to make the Sudanese President stand trial in the court was reflected in a statement by the ICC which called on South Africa, as a signatory to the court's treaty, to detain Bashir and spare no effort in ensuring the execution of the arrest warrants. The Southern Africa Litigation Center (SALC); a local human rights group, also secured an interim order from the Pretoria High Court to bar Sudan’s president, Omar al-Bashir, from leaving South Africa to avoid undermining the authority of the international criminal court (ICC) until an urgent application to force authorities to arrest him is heard.
On Sunday June 14, 2015 after South Africa’s ruling African National Congress (ANC) said the ICC was no longer useful for the purposes for which it was intended, and called for a review of ICC statutes to make them applicable to all UN members and ensure a fair and independent court for universal and equitable justice since the ICC was not useful to prosecute crimes against humanity because membership is voluntary, the prospects of the Sudanese president being arrested became shaky. It became glaring that Omar al-Bashir might just walk free since he enjoyed immunity like other African leaders participating in the African Summit under the auspices of the African Union (AU) whose member states have previously accused the UN-backed court of being biased, only targeting political leaders on their continent and failing to bring to justice those responsible for war crimes in the Middle East and elsewhere.
The warnings of Judge Hans Fabricuis who urged the government to take all necessary steps to prevent Bashir, 71, from leaving the country went unheeded as Omar al-Bashir unsurprisingly disappeared on Monday June 15, 2015 with his whereabouts unknown despite the initial order preventing Bashir’s departure was extended on Sunday so that the court could reconvene on Monday to examine the SALC application. Protected by the authorities, President Omar Hassan al-Bashir of Sudan flew out of South Africa on Monday morning aboard his presidential jet, just hours before a South African court ruled that the government was legally required to arrest him in compliance with commitment to the Hague-based court after SALC filed an urgent application to overturn a government decision to grant immunity to all delegates attending the AU summit.
Though South Africa is a member of the International Criminal Court, its government defied the longstanding arrest warrant for Mr. Bashir, who again eluded international prosecutors seeking to try him on charges of war crimes, crimes against humanity and genocide, related to the conflict in the Darfur region of Sudan. His departure dealt a serious blow to the international court’s six-year campaign to bring him to justice and questions the authority of the court whose warrants are not executed by states and parties to its treaty. The African Union, which represents the continent’s governments, has campaigned heavily against the court, contending that no sitting head of state should be prosecuted and has urged African leaders to pull out of the ICC.
However, Bashir's protection from being arrested attract criticism. Elise Keppler of Human Rights Watch said “Allowing president Bashir into South Africa without arresting him would be a major stain on South Africa’s reputation for promoting justice for grave crimes and as an ICC member, South Africa's legal obligation mean cooperating in Bashir’s arrest, not in his travel plans.” Johan Kruger, the director of the Center for Constitutional Rights remarked that “Even though it is understandable the government needs to maintain diplomatic relations with African countries, the point remains that in our country the Constitution is supreme.”
Judge Dunstan Mlambo of South Africa’s High Court said on Monday afternoon that “The government’s failure to arrest Bashir is inconsistent with the Constitution.” By then, Mr. Bashir was already halfway to Khartoum. But did Pretoria's decision to let Bashir fly inconsistent just because the treaty's provision of the ICC has been incorporated into the country's constitution, noting that the power to grant immunity which has been granted to the Sudanese President is also provided for by the constitution? This inconsistency question was debated when legal experts argued that Pretoria has violated the 1998 Rome Treaty it signed to join the court which has been incorporated into its own Constitution. But William Mokhari, a lawyer for the South African government, counter that Mr. Bashir enjoyed immunity like the other African heads of state attending the summit meeting here. Mr. Mokhari said the decision by the government to grant immunity to the visiting heads of state trumped its obligations to the international court.
Constitutional inconsistency or not, what is certain is that, South Africa is not ready to strain diplomatic relations with its African neighbours and neither is it interested in disrespecting the opinion and position of the African Union, whose 24th summit was held on the South African soil by honouring its obligation to ICC which South Africa is a signatory to. This lost of sense of belonging to ICC despite being a signatory to it was better expressed when Sudan’s foreign minister, Ibrahim Ghandour, said at a news conference at the airport that “The International Criminal Court has been totally destroyed in Africa.” Under President Jacob Zuma, South Africa, which was initially a staunch supporter of the court, has moved closer in recent years to the African Union and its stance against the International Criminal Court.
This case strikes at the heart of a global dispute over the international court. Since its creation in 2002, all of the court’s investigations have focused on Africa. But it lacks a police force to enforce its rulings and must rely on diplomatic pressure and the cooperation of members to ensure that its rulings or indictments are enforced. The diplomatic cooperation that will ensure the rulings or indictments of the Hague-based court are enforced was further undermined with African politicians accusing the court of unfairly targeting African leaders and nations, arguing that it overlooks crimes committed in other parts the world especially in the Middle East and particularly Israel.
Omar al-Bashir was originally indicted more than a decade ago. Since his indictment in 2009, he has mostly travelled to countries that have not joined the ICC. Though it is certain he would have sought guarantees that he will not be transferred before he could leave for South Africa, South Africa's actions reflect how low the popularity and acceptance of the Hague-based court has become on the African continent. Other African nations, including Kenya and Nigeria, have allowed Mr. Bashir to visit and leave peacefully with assurance of not being arrested. In the six years since Mr. Bashir was indicted, his trip to South Africa was perhaps the closest he had come to being arrested.
On March 4, 2009 President Omar al Bashir, became the first sitting president to be indicted by ICC for directing a campaign of mass killing, rape, and pillage against civilians in Darfur. The arrest warrant for Bashir was issued after it became glaring that the Sudanese President was unwilling to address the human right crisis in the region, which has been said to claim 400,000 lives, displaced over 2,500,000 people and over 4,700,000 Darfuris rely on humanitarian aid according to UN estimates as more than one hundred people continue to die each day and five thousand die every month in the ongoing crisis.
READ ALSO : ROAD MAP TO AFRICA'S DEVELOPMENT BY ABIOLA AKINTUNDE
Abiola Akintunde is a political commentator based in Nigeria. He tweets at @AAbiolat on twitter, blogs on www.abiolaoakintunde.wordpress.com and can be reached via paulakintunde@gmail.com
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