Bashir, immunity, impunity and South Africa

Photo © Martha Heinemann Bixby/ flickr
Sudanese protestors outside the United Nations in 2010, calling for the prosecution of President Omar Al-Bashir.

As I write this, President al-Bashir has left the country. He should never have risked coming and the South African government should have suspected that something like this might happen.

Since the weekend, we have listened to much commentary about South Africa’s obligations as a signatory to the Rome Statute and as a member of the AU, which in 2013 passed a resolution that sitting heads of state should not be put on trial by the International Criminal Court (ICC), and earlier in 2010 had requested member states to ‘balance, where applicable, their obligations to the AU with their obligations to the ICC’.

In drawing the case as a legal dilemma for South Africa, the commentary ignores the following facts.

South Africa is a signatory to the Rome Statute which is an international legal treaty. Furthermore, in 2002 South Africa domesticated the Statute into its own legislation through the passing of the Implementation of The Rome Statute of The International Criminal Court Act 27 of 2002 (as any good international citizen would do once it has ratified an international treaty).

Thus South Africa is in fact bound by its own legislation to implement the obligations of the Rome Statute. From that perspective the matter is clear. There may well be a political compulsion to honour the AU resolution, but that is not the same as a legal obligation.

Nevertheless, this development raises questions about impunity, sovereignty and universal jurisdiction, and the ability of African institutions to prosecute international crimes. It is fair to say that the ICC is an imperfect instrument. Not only have states such as the US and Russia signed but not ratified the Statute (India and China are not signatories), but the ICC actions have sometimes created the impression that certain actors are above the law, while others are not. While not all those indicted have been African – lest we forget Slobodan Milosevic and Radovan Karadic – the ICC’s current investigations are all in Africa.

Let’s recall the underlying reasons for the Court’s establishment in 1998: it was to advance the cause of human security by tackling the impunity of the powerful, whether in government or outside it. It emerged in the wake of the killing fields of the Balkans and Rwanda. Together with the ‘responsibility to protect’ doctrine that was preceded by the concept of ‘sovereignty as responsibility’ (a phrase coined by South Sudanese scholar Francis Deng and colleagues at the Brookings Institution), the Rome Statute aimed to advance the notion through a recognition of universal jurisdiction among others that sovereignty was not a free-ticket to human rights violations within a country. By including heads of state or government in its jurisdiction it created the incentive to reduce impunity by those in office over time. Its challenge remains that those states which have not signed the Statute and which have allegedly committed atrocities can only be investigated via a referral from the UN Security Council. Here lies the double standard in the execution of justice.

When the Court was established, African states were among its biggest supporters. Of the 122 states that are parties to the Statute, 34 are African, and many of the African cases before the court were actually brought by African States Parties. African states’ biggest objection to the ICC has come with the indictment of sitting heads of state, of which Al-Bashir was the first.

The indictment of the first sitting president al-Bashir in 2009 emphasised that no-one was above the law. Yet it raised a related tension between the practical imperatives of ending a conflict and justice for the victims that would not contemplate immunity from impunity. The imperatives of a political settlement would require that such indictment be recalled in the interests of negotiating an exit from the conflict, a case that the AU and South Africa made at the time.

One of Africa’s biggest challenges is the absence of proper accountability and governance frameworks in many African jurisdictions. These are compounded by the lack of effective independent judiciaries, which make it difficult, if not impossible, for perpetrators of mass atrocities (where these are political elites) to be properly brought to justice. The Rome Statute makes the ICC the court of last resort in instances where national authorities are unwilling or unable to prosecute mass atrocities and war crimes.

There have been many calls for Africa to have its own court and be responsible for prosecuting international crimes on the continent. Most recently, at the 2014 AU summit in Malabo, members adopted a protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. Professor Garth Abraham’s paper published this year by SAIIA analyses the Malabo Protocol, which is intended to make provision for the proposed African Court of Justice and Human Rights to have jurisdiction over 14 ‘international’ crimes.

Establishing such a court should be welcomed, but the Protocol, as it stands, excludes heads of state or government from its jurisdiction. In so doing, it fails to tackle and to show political commitment at the highest level to putting an end to impunity by political elites. The experience of the SADC Tribunal is a salutary tale in the difficulty of building such institutions.

Prof Abraham’s paper emphasises that the ICC itself has to address the perception of bias against the continent. However, African states must build a ‘credible system of international criminal justice’, where the need for the ICC to act as a court of last resort is obviated. Such a system can recognise the necessities that sensitive negotiations and attempts at conflict resolution impose to have all parties at the table. In so doing though there is an imperative to ensure ‘truth and justice’.

For too long, unaccountable governments have been able to hide behind sovereignty to justify mass atrocities. African citizens have often been the victims with very little recourse. Surely, our responsibility is to protect them and in so doing secure a culture of non-impunity from our leaders in the future. South Africa should be leading the continent in resolving these seeming contradictions in the creation of an international framework that reduces impunity.