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Omar al-Bashir case suggests South African foreign policy is going rogue Omar al-Bashir case suggests South African foreign policy is going rogue
(about 3 hours later)
The South African government’s brazen decision to bypass the high court in Pretoria and seemingly allow Omar al-Bashir, the Sudanese president accused of genocide and war crimes, to leave the country on Monday raises serious questions about the ANC-led administration’s commitment to the rule of law and looks like an enormous V-sign aimed at key allies, including the US, Britain and the international criminal court.The South African government’s brazen decision to bypass the high court in Pretoria and seemingly allow Omar al-Bashir, the Sudanese president accused of genocide and war crimes, to leave the country on Monday raises serious questions about the ANC-led administration’s commitment to the rule of law and looks like an enormous V-sign aimed at key allies, including the US, Britain and the international criminal court.
The act of defiance by the president, Jacob Zuma – and there can be little doubt he was directly involved – places him at the head of a growing band of African leaders who argue that the ICC, which issued arrest warrants for Bashir in 2009, is biased against Africa and has become an oppressive tool of western powers.
Related: Sudan says president Omar al-Bashir has left South AfricaRelated: Sudan says president Omar al-Bashir has left South Africa
The act of defiance by the president, Jacob Zuma – and there can be little doubt he was directly involved – places him at the head of a growing band of African leaders who argue that the ICC, which issued arrest warrants for Bashir in 2009, is biased against Africa and has become an oppressive tool of western powers.
Zuma’s ostensible “anti-imperialist” stance will be popular in the developing world, reflecting a larger north-south split. From Bashir’s point of view, his successful Houdini act marks a breakthrough in his continuing attempt to end Sudan’s diplomatic isolation. The fact that he attended a prestigious African Union summit in a country that is a state party to the ICC, was granted de facto immunity from prosecution, hobnobbed with fellow pariahs such as Zimbabwe’s Robert Mugabe and got away scot free, is one in the eye for his tormentors, principally the Americans, who continue to sanction his regime.Zuma’s ostensible “anti-imperialist” stance will be popular in the developing world, reflecting a larger north-south split. From Bashir’s point of view, his successful Houdini act marks a breakthrough in his continuing attempt to end Sudan’s diplomatic isolation. The fact that he attended a prestigious African Union summit in a country that is a state party to the ICC, was granted de facto immunity from prosecution, hobnobbed with fellow pariahs such as Zimbabwe’s Robert Mugabe and got away scot free, is one in the eye for his tormentors, principally the Americans, who continue to sanction his regime.
For the ICC, Bashir’s vanishing act, following his similar though less dramatic escapades in Egypt, Libya and Saudi Arabia, is a significant setback in the court’s quest to establish its effectiveness and extend its reach. It may now face a full-scale rebellion led by South Africa of many of the African countries that originally signed up to the court in droves.For the ICC, Bashir’s vanishing act, following his similar though less dramatic escapades in Egypt, Libya and Saudi Arabia, is a significant setback in the court’s quest to establish its effectiveness and extend its reach. It may now face a full-scale rebellion led by South Africa of many of the African countries that originally signed up to the court in droves.
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The constitutional and legal issues raised by the South African government’s pre-empting of the high court are far reaching. It is unconvincing to argue, as the government did in court, that its pre-summit offer of immunity to Bashir superseded its international obligations under the Rome statute, which created the ICC. All state parties to the statute are obliged to cooperate fully with the court and may face UN security council sanctions if they fail to do so.The constitutional and legal issues raised by the South African government’s pre-empting of the high court are far reaching. It is unconvincing to argue, as the government did in court, that its pre-summit offer of immunity to Bashir superseded its international obligations under the Rome statute, which created the ICC. All state parties to the statute are obliged to cooperate fully with the court and may face UN security council sanctions if they fail to do so.
Zuma’s government did not just fail to cooperate. It sent justice department lawyers to court to argue, in effect, on Bashir’s behalf. It defied a direct appeal from the ICC prosecutor, who asked Pretoria “to spare no effort in ensuring the execution of the arrest warrants”. It ignored similar appeals from the US state department and the EU and raised the stakes by questioning the ICC’s authority. An ANC national executive committee statement said: “The African National Congress holds a view that the ICC is no longer useful for the purposes for which it was intended – being a court of last resort for the prosecution of crimes against humanity ... countries, mainly in Africa and eastern Europe ... continue to unjustifiably bear the brunt of the decisions of the ICC, with Sudan being the latest example.”Zuma’s government did not just fail to cooperate. It sent justice department lawyers to court to argue, in effect, on Bashir’s behalf. It defied a direct appeal from the ICC prosecutor, who asked Pretoria “to spare no effort in ensuring the execution of the arrest warrants”. It ignored similar appeals from the US state department and the EU and raised the stakes by questioning the ICC’s authority. An ANC national executive committee statement said: “The African National Congress holds a view that the ICC is no longer useful for the purposes for which it was intended – being a court of last resort for the prosecution of crimes against humanity ... countries, mainly in Africa and eastern Europe ... continue to unjustifiably bear the brunt of the decisions of the ICC, with Sudan being the latest example.”
In a clear dig at the US, which like China, Russia and India is not an ICC signatory and is sometimes accused of double standards, the ANC claimed “gross human violations committed by non-signatory countries go unpunished”. It called for the Rome statutes to be reviewed to ensure all UN members were subject to the same level of scrutiny.In a clear dig at the US, which like China, Russia and India is not an ICC signatory and is sometimes accused of double standards, the ANC claimed “gross human violations committed by non-signatory countries go unpunished”. It called for the Rome statutes to be reviewed to ensure all UN members were subject to the same level of scrutiny.
Monday’s events will increase concern in the US and elsewhere about South Africa’s international outlook. In 1993, Nelson Mandela declared that “human rights will be the light that guides our foreign policy”. But Pretoria has often appeared to side with egregious human rights abusers, such as Mugabe. Its UN voting record on Burma, Belarus, Cuba and Iran has aligned South Africa with authoritarian states such as China and Russia.Monday’s events will increase concern in the US and elsewhere about South Africa’s international outlook. In 1993, Nelson Mandela declared that “human rights will be the light that guides our foreign policy”. But Pretoria has often appeared to side with egregious human rights abusers, such as Mugabe. Its UN voting record on Burma, Belarus, Cuba and Iran has aligned South Africa with authoritarian states such as China and Russia.
Related: 'There is no such thing as an election in Sudan'Related: 'There is no such thing as an election in Sudan'
South Africa’s defiance will dismay the ICC, which is still recovering from its inability last year to pursue crimes against humanity charges against Kenya’s president, Uhuru Kenyatta. Fatou Bensouda, the ICC prosecutor, complained that her investigation had been blocked by the Kenyan authorities and suggested witnesses had been interfered with, which she claims is a problem commonly encountered elsewhere.South Africa’s defiance will dismay the ICC, which is still recovering from its inability last year to pursue crimes against humanity charges against Kenya’s president, Uhuru Kenyatta. Fatou Bensouda, the ICC prosecutor, complained that her investigation had been blocked by the Kenyan authorities and suggested witnesses had been interfered with, which she claims is a problem commonly encountered elsewhere.
The ICC has also frozen inquiries in Darfur, western Sudan, where Bashir’s human rights crimes are alleged to have taken place, due to a lack of UN support. Bensouda said last year that the security council’s lack of foresight had hurt the people of Darfur. This failure “reflects badly not just on the international justice system of which the ICC is only a part, but it also greatly undermines the credibility of this council as an instrument of international peace and security”, she said.The ICC has also frozen inquiries in Darfur, western Sudan, where Bashir’s human rights crimes are alleged to have taken place, due to a lack of UN support. Bensouda said last year that the security council’s lack of foresight had hurt the people of Darfur. This failure “reflects badly not just on the international justice system of which the ICC is only a part, but it also greatly undermines the credibility of this council as an instrument of international peace and security”, she said.
The ICC has nine situation investigations under way at present, all in Africa. Responding to criticism that its focus is too narrow, or even racist, it has since launched preliminary inquiries into alleged crimes in Ukraine, Palestine, Iraq and Honduras. Bensouda argued recently that this growing caseload demonstrated the court’s increased effectiveness. She said: “This is testament to the ever growing legitimacy of the court ... this shows how in less than 15 years of existence, the court has managed to establish itself as a credible, professional, independent instrument.” Bensouda said the ICC would be expanding its remit to include children’s rights and sexual and gender-based crimes.The ICC has nine situation investigations under way at present, all in Africa. Responding to criticism that its focus is too narrow, or even racist, it has since launched preliminary inquiries into alleged crimes in Ukraine, Palestine, Iraq and Honduras. Bensouda argued recently that this growing caseload demonstrated the court’s increased effectiveness. She said: “This is testament to the ever growing legitimacy of the court ... this shows how in less than 15 years of existence, the court has managed to establish itself as a credible, professional, independent instrument.” Bensouda said the ICC would be expanding its remit to include children’s rights and sexual and gender-based crimes.
Speaking before the case of Bashir in South Africa arose, Bensouda admitted big problems remained over perceptions of the ICC’s judicial independence. She said: “There is a continuous need to shield the court from politicisation at national and international levels. The court has to be allowed to carry out its mandate impartially and independently, without fear or favour.”Speaking before the case of Bashir in South Africa arose, Bensouda admitted big problems remained over perceptions of the ICC’s judicial independence. She said: “There is a continuous need to shield the court from politicisation at national and international levels. The court has to be allowed to carry out its mandate impartially and independently, without fear or favour.”