D-Day Looming for South Africa

Published 28th June 2017

Next week on 6 July, the International Criminal Court (ICC) will announce its ruling on whether South Africa’s failure to arrest President Bashir constitutes an act of non-compliance. In reality findings of non-compliance have had little impact on other nations in the past, but in South Africa’s case- could the outcome determine whether South Africa withdraws from the Rome Statute?

On 7 April 2017 South Africa was provided with a crucial opportunity to explain its actions before the ICC judges. Some would say, an opportunity to justify the unjustifiable. The Pre-Trial Chamber of the ICC must ascertain whether South Africa failed to comply with its obligations and if so, is a formal finding of non-compliance and a referral to the Assembly of States Parties (ASP) and/ or the United Nations Security Council (UNSC) warranted.

The Bashir saga marks the point of no return on the road that has brought South Africa before the ICC. Bashir’s June 2015 visit triggered South Africa’s domestic and international law duty to arrest him pursuant to an ICC arrest warrant. South Africa’s status as a member of the founding treaty of the ICC, the Rome Statute, combined with the fact that South Africa domesticated the Statute provided a basis for his arrest. Unfortunately, the government failed to comply with its duties.

Failure to arrest Bashir who is wanted for genocide, war crimes and crimes against humanity, was successfully challenged in court by the Southern Africa Litigation Centre. The High Court, and the Supreme Court of Appeal found that failure to arrest Bashir was unlawful. Despite both these rulings, at its hearing at the ICC on 7 April 2017, the South African government justified its actions by stating that there is no international law duty to arrest Bashir and thus no cause to refer South Africa to the ASP or the UNSC. Whether the ICC judges will find this argument convincing remains to be seen.

Should the ICC rule against South Africa, it would not be the first finding of non-compliance. Unfortunately, a number of states, some on more than one occasion, have been found non compliant. Djibouti, Uganda, the Democratic Republic of Congo, Kenya, Malawi, and Nigeria have all been referred to ASP and/ or the UNSC for Bashir related issues.

There are several problems with this picture.

Nations failing to fulfil their obligations as members of the Rome Statute is one problem, but the fact that findings of non-compliance have little or no real consequence is another. The ASP and the UNSC are mandated to act in this regard but to date very little action has been taken against states found to be non-compliant.

Whilst presumed innocent until found guilty, Bashir should not hide from the law. The fact that Bashir continues to put his fellow African leaders in a precarious position by visiting signatory states and refusing to answer charges brought against him is another problem. His visits continue to jeopardise the rule of law in these nations and compromise the quest for international justice and accountability. The events that unfolded in South Africa are a clear indication of the extent of damage left in his wake.

After his visit to South Africa an unprecedented meeting was held between the judiciary and the executive. The executive blatantly disregarded a direct court order when Bashir was allowed to leave the country. Facilitating and permitting his escape despite being strictly instructed by the court that Bashir ought to remain in South Africa pending the finalisation of the legal proceedings caused massive uproar and generated concern about governance and the rule of law in South Africa.

Bashir’s visit and hasty departure had massive legal and political consequences including encouraging the ANC to call for withdrawal from the ICC. Due to procedural irregularities, the domestic courts came to the rescue earlier this year and prevented the government from abandoning the ICC. However, should the ICC make an adverse ruling, the government could decide to initiate the withdrawal process all over again. Unlike the last attempt that was riddled with unconstitutional steps, this time round, the government could succeed in its shortsighted quest to abandon the ICC.

That being said, the ICC should not be held hostage by threats of withdrawals and must rule without fear or favour in accordance with the law. Perhaps the South African government will recognise that valuable opportunities for engagement will be missed should South Africa withdraw from the ICC.

The ICC is not beyond reproach but avenues for engagement and dialogue should be pursued to improve the ICC and make it a court that the international community as a whole can be proud of. Whether they are found non-compliant or not, the South African government should work to improve the Court they helped establish 19 years ago at the Rome Conference.

**This article appeared in the Star newspaper on 28 June 2017.

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