South Africa faces the music at the ICC

Published 6th April 2017

The dubious cabinet reshuffle has stolen headlines for very valid reasons. However, the fact that South Africa must appear before the International Criminal Court on Friday this week for its failure to arrest Sudanese President Omar al Bashir, should not fall off our news radars. Could it influence whether the current government decides to remain as member of the ICC or is it merely a matter of procedural formality for the government? To understand the impact this hearing could have, reflecting on how South Africa ended up in this position is necessary.

It all started with Bashir’s visit. His presence in South Africa, and South Africa’s failure to arrest him can be added to the long list of failures of the Zuma era. Bashir is wanted by the ICC for genocide, war crimes and crimes against humanity perpetrated against his own people in Darfur. He has been a fugitive since 2009.

That same year, South Africa domesticated the arrest warrant pertaining to war crimes and crimes against humanity charges, reinforcing that fact that he is a wanted man. It was also that very year when Bashir was invited to President Zuma’s inauguration, yet it was made publically and privately clear that South Africa would have to arrest him should he be found on South African soil. Naturally, Bashir declined the invitation.

Fast forward to 2015, Bashir is invited to attend the African Union Summit in Johannesburg. Despite clear domestic and international obligations, the South African government facilitated Bashir’s arrival and his surreptitious escape, bringing the rule of law into question and severely damaging the nation’s international reputation. The failure to arrest Bashir was deemed unlawful by both the High Court and the Supreme Court of Appeal. That did not stop the government from taking the matter on appeal to the Constitutional Court.

Less than two months before the scheduled Constitutional Court hearing, the government withdrew its appeal thus signalling its acceptance of the Supreme Court of Appeal judgment that government had acted unlawfully. A positive realisation one would think, however, the plot thickens.

The executive then unilaterally sent an invalid notice of withdrawal from the ICC to the United Nations Secretary General signalling the termination of its ICC membership. But due to procedural irregularities, including failing to consult parliament and the general public about such a drastic move, that notice was challenged in the High Court and deemed invalid.

The government was ordered to revoke the notice.

However, at this point they had already introduced the bill seeking to repeal the domestic legislation that, amongst other factors, regulates South Africa’s cooperation with the ICC. Parliament issued calls for public comment and many organisations sent detailed comments revealing the debilitating shortcomings of the Repeal Bill.

In a surprise twist the ANC withdrew the Repeal Bill. Though it was a positive development, it is not entirely clear why they did so as they were not ordered to by the High Court. Be that as it may, South Africa must still explain itself to the ICC. Some commentators have suggested that a less harsh outcome could encourage South Africa to stay within the system, whilst others are convinced that South Africa remains hell-bent on leaving the ICC regardless of the outcome of the hearing.

The ICC is expecting relevant authorities “ to submit their views on the events surrounding Bashir’s attendance to the African Union summit in Johannesburg …with particular reference to their failure to arrest and surrender Bashir”.

The ICC Pre Trial Chamber will then have to determine, whether South Africa failed to comply with its obligations under the Statute by not arresting Bashir. If they did in fact fail in their duties, is a formal finding of non-compliance and referral of the matter to the ICC Assembly of States Parties and/or the United Nations Security Council warranted?

The ICC has previously made findings of non-compliance in the cases of Chad, and Malawi who, for different reasons, also failed to arrest Bashir when he darkened on their doorsteps.

Given the importance of the matter, other interested states parties have been permitted to make written submissions, as has the Southern Africa Litigation Centre-the organisation at the heart of seeking the arrest of Bashir during his visit.

There have been reports that the government intends to reintroduce the Repeal Bill and continue the withdrawal process regardless of the outcome of this hearing. However, like everything with the current government, one never quite knows what they will do next.

Perhaps it is only a matter of time before South Africa abandons the ICC, setting a dangerous precedent and limiting forums of justice South African citizens can access. Or perhaps we will all be pleasantly surprised and the government will opt for a more rational, measured approach, favouring constructive engagement designed to perfect the imperfect ICC.

**This article originally appeared in the Star newspaper on 6 April 2017 under the title SA case over Bashir must not fall of news radars

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