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Pretoria in the dock over al-Bashir debacle

Publish date: 10 April 2017
Issue Number: 721
Diary: IBA Legalbrief Africa
Category: General

At an unprecedented hearing at the International Criminal Court (ICC) last week, South Africa attempted to deflect accusations that it had failed in its obligations to the very tribunal which it helped to found. Legalbrief reports that Pretoria stands accused of flouting international law when it failed to arrest ICC fugitive and Sudanese President Omar al-Bashir in 2015. Although this was the first public hearing of its type, last year the ICC referred Chad, Djibouti and Uganda to the UN for also failing to arrest al-Bashir. So far no action has been taken against them. Despite two international arrest warrants issued in 2009 and 2010, al-Bashir remains at large and in office amid the raging conflict in the western Sudanese region of Darfur. A report on the eNCA site notes that he faces 10 charges, including three of genocide as well as war crimes and crimes against humanity in the western Darfur region. At the same time, the ICC has faced a backlash from some African countries for issuing the arrest warrant for al-Bashir. Last year, South Africa, Burundi and Gambia announced they would withdraw from the court, the first countries to take such action. Gambia has rescinded its withdrawal and South Africa is also re-examining its withdrawal, making Burundi the only country to have maintained its withdrawal. And several countries, including Botswana, Burkina Faso, the DRC, Lesotho and Senegal have affirmed their commitment to remain in the ICC and to work for any reform as ICC members.

Full report on the eNCA site

The prosecution led by Julian Nichols opened by stating that South Africa failed in its duty, and that a formal finding of non-cooperation was appropriate as well as referrals to both the Assembly of State Parties to the Rome Statute and UN Security Council. The Daily Maverick reports that they also commented on the ‘evolution’ of South Africa’s changing legal argument from the domestic court cases to what was being presented before the ICC and made the accusation that South Africa had already identified the political and diplomatic problems around al-Bashir’s visit and has been searching for a legal justification to rely on. They concluded that it was problematic that South Africa did not take interim measures to detain al-Bashir while the urgent High Court application was ongoing domestically and this displayed an absence of willingness to comply with the ICC request. The report notes that the Bench posed some sticky questions to the respondent about the delays in their seeking to consult with the court and requested an explanation for the long time which elapsed between South Africa being aware of al-Bashir’s visit and their Ambassador seeking a consultation. South African legal adviser Dire Tladi argued there ‘was no duty under international law on SA to arrest the serving head of a non-state party such as Mr Omar al-Bashir’. He argued: ‘The duty to arrest Mr Omar al-Bashir was not as clear as the office of the prosecutor would suggest.' Presiding judge Cuno Tarfusser said the aim of the hearing was to decide ‘whether SA failed to comply with its obligations ... by not arresting and surrendering Omar al-Bashir ... while he was on SA territory’.

Full Daily Maverick report

The judges may decide to report Pretoria to the UN Security Council for eventual sanctions, notes a report on the News24 site. But Pretoria's lawyers argued such a move would be ‘unwarranted and unnecessary’ and the ‘only purpose’ of such a measure would be ‘to cast SA in bad light'. Tladi warned the case will ‘have profound and far-reaching legal consequences far beyond’ the al-Bashir case, saying it could call into question the very integrity of the ICC. Legal representatives for the victims, Wanda Akin and Raymond Brown, urged the court to send ‘an unmistakable message that open defiance of its writ will not be permitted'. South African chief state law adviser, Sandea de Wet, is quoted in an SABC News report as saying: ‘We are a sovereign state, and sovereign states, as you would know, are governed by rules and procedure, and that is what we were looking for; that was not available and it is still not available.’ Tladi added: ‘Every inter-governmental conference that is hosted by SA is done so on the basis of a host country agreement. Each and every one of these host country agreements, not some, not most, every one of them, contains immunity provisions. So it is not the truth to suggest that (the) host country agreement was concluded solely for the protection of one person.’ However, Nicholls accused South Africa of deliberately choosing not to arrest al-Bashir, notes a second SABC News report. Nicholls says the only reason he wasn't arrested was because Pretoria disagreed with a High Court ruling instructing the government to apprehend him. Nicholls says that South Africa ‘had the ability to arrest and surrender him and it chose not to do so’, allowing al-Bashir and his delegation to fly home unimpeded from a military air base. In the end the only reason Pretoria did not arrest him was ‘that SA disagreed with the court's jurisprudence, the law as set out... so it did not comply'.

Full report on the News24 site

First SABC News report

Second SABC News report

Meanwhile, a group of African organisations and international NGOs has urged Zambia to reaffirm its ICC membership to best advance justice for victims of atrocities. The issue was triggered by the AU proposing an ‘ICC withdrawal strategy’ earlier this year. Human Rights Watch (HRW) notes that 16 countries, including Zambia, entered reservations about the proposal. ‘Zambia has much to gain by staying with the ICC,’ said Boniface Cheembe, executive director of Zambia’s Southern African Centre for the Constructive Resolution of Disputes. She said Zambia has been a role model on the continent in matters of peace, democracy and human rights. Dewa Mavhinga, Southern Africa director at Human Rights Watch, said the ICC ‘has room for improvement’, but it offers hope to victims who have nowhere else to turn for justice. ‘The court serves African victims who have suffered atrocities.’ The majority of ICC investigations in Africa have arisen in response to requests or grants of authority by governments in the countries where the crimes were committed or through referrals by the UN Security Council. The groups expressing support for Zambia’s continued ICC membership are:

Africa Legal Aid
Africa Centre for International Law and Accountability

Centre for Accountability and Rule of Law

Sierra Leone
Centre for Democratic Development

Centre for Human Rights and Rehabilitation (Malawi)

Civil Resource Development and Documentation Centre (Nigeria)

Coalition for the International Criminal Court

Fédération Internationale des Droits de l’Homme

Human Rights Watch

JEYAX Development and Training (South Africa)

Kenya Section of the International Commission of Jurists
Kenya Human Rights Commission
Nigerian Coalition for the ICC
Parliamentarians for Global Action

Southern African Centre for the Constructive Resolution of Disputes (Zambia)

Southern Africa Litigation Centre (South Africa)

Transnational Threats and International Crime Division of the Institute for Security Studies

HRW statement