---------- Forwarded message ----------
From: Eric Reeves <[email protected]>
Date: Tue, Jun 16, 2015 at 12:28 AM
Subject: South Africa’s Ruling African National Congress Disgraces Itself
To: Eric Reeves <[email protected]>
*South Africa’s Ruling African National Congress Disgraces Itself*
by Eric Reeves
This morning (June 15, 2015) Omar al-Bashir, President of Sudan, was
allowed to leave South Africa despite a pending arrest warrant from the
International Criminal Court charging him with multiple counts of genocide
and massive crimes against humanity. Since South Africa is a party to the
Rome Statute that created the ICC, the government of South Africa was
legally obliged to surrender al-Bashir to the Court’s jurisdiction. That
agents of the government failed to do so not only violated South Africa’s
international legal commitments, but its own constitution: the government’s
decision to allow al-Bashir to fly back to Khartoum defied a court order
that would have obliged a legal review of South Africa’s treaty obligations
in light of al-Bashir’s presence in the country. The order, following an
application from the Southern Africa Legal Centre, was issued specifically
to prevent al-Bashir’s departure before a judicial review of the
applicant’s arguments (the court documents may be found here
<http://wp.me/p45rOG-1JY>).
[image: image.adapt.960.high.sudan_elections_04a]
<http://sudanreeves.org/wp-content/uploads/2015/04/image.adapt_.960.high_.sudan_elections_04a.jpg>
*The Khartoum regime's Génocidaire-in-Chief Omar Hassan al-Bashir, voting
for himself (virtually alone at this polling station) in April's travesty
of national "elections"*
Many around the world—including many who stood by South Africa and the
African National Congress of Nelson Mandela during the dark days of
apartheid—are shocked and dismayed at the decision by the ANC, as the
governing party, to side with an indicted génocidaire over the fully
justified claims of international justice. This disgraces Mandela’s legacy,
reveals the ANC and President Jacob Zuma in particular as falling further
into the pit of political corruption and disregard for the rule of law, and
tarnishes South Africa’s international standing. It should be noted as well
that there was strong opposition to al-Bashir’s presence in South Africa,
coming from many of the country’s human rights and civil society
organizations, as well as journalists and academics.
[image: Nelson_Mandela]
<http://sudanreeves.org/wp-content/uploads/2015/06/Nelson_Mandela.jpg>
*South Africa's great liberator, Nelson Mandela*
This shameful episode also brings into high relief the character of the
African Union, whose summit al-Bashir was attending. Over the past thirteen
years, an organization nominally representing an effort to do away with the
corruption and political high-handedness that defined the old Organization
of African Unity has largely reincarnated those very failings. It is little
more than another “old boys” dictators’ club, with Robert Mugabe of
Zimbabwe as its all too representative president. As many in Africa and
outside the continent have observed, the African Union seems much more
interested in furthering various political interests (including
self-preservation) than human rights and the concerns of ordinary citizens
of the 54 countries that make up the AU.
[image: Robert-Mugabe-460x276]
<http://sudanreeves.org/wp-content/uploads/2015/06/Robert-Mugabe-460x276.jpg>
*Robert Mugabe, Zimbabwe's long-time strongman and now president of the
African Union; his capacity for repression is legendary*
The AU leadership, specifically the African Union Peace and Security
Council, has actively encouraged contempt for the ICC, and has declared
that ICC jurisdiction does not apply to African countries, even those that
have signed the Rome Treaty. There are efforts within the AUPSC to have all
African countries withdraw from the Rome Treaty *en masse*. This
increasingly hostile attitude is the primary reason Sudan’s president has
been able to travel so widely internationally in African countries, several
Arab countries, and other countries as well (e.g., China, Iran). Most of
those to which al-Bashir has traveled are not party to the Rome Statute,
although some—Kenya and South Africa, for example—are.
Understanding this, the South African government reportedly offered
al-Bashir “back-door” immunity from ICC arrest, promising him behind the
scenes that he would not be seized while in South Africa. Evidently not
much thought was given to the prospect of having to engage in
unconstitutional acts, including defying the country’s judiciary, in order
to make good on this promise. But we may also be certain that the
leadership of the Africa Union knew full well what was going on behind the
scenes, and saw no problem in encouraging any illegal activity that might
occur. The AU leadership’s growing contempt for the ICC as an institution
has become* de facto *“African policy.”
Such open flouting of constitutional obligations by the ANC government is a
terribly destructive consequence of the decision not to arrest al-Bashir.
Moreover, we must consider that this destructiveness was understood in
advance, and accepted as the price to pay for hosting the 25th African
Union summit. Pushback from the court system was immediate, but as of this
writing al-Bashir has already landed in Khartoum amidst quickly
orchestrated pomp and celebration.
[image: Jacob-Zuma-during-a-media-001]
<http://sudanreeves.org/wp-content/uploads/2015/06/Jacob-Zuma-during-a-media-001.jpg>
*Jacob Zuma, President of South Africa, has little in common with Nelson
Mandela*
The “Independent On Line” (June 15, 2015, South Africa
<http://www.iol.co.za/news/crime-courts/court-wants-answers-on-bashir-departure-1.1872004>)
gives us a sense of the crisis created by the ANC-led government:
The High Court in Pretoria has demanded an explanation as to why Sudanese
President Omar al-Bashir was allowed to leave South Africa on Monday,
despite an interim court order barring him from doing so. “We request an
affidavit to be filed with the registrar of this court within seven days,
disclosing the time when he left, the port of entry or exit that he used,”
Judge President Dunstan Mlambo told the government’s legal counsel,
advocate William Mokhari. “It is of concern to this court that it issues
orders and then things just happen in violation of those orders. Be that as
it may, that is an order we issue under the circumstances.”
It is difficult to estimate the damage done to the South Africa’s
traditional respect for the rule of law and the ICC itself with this
egregious breech of treaty obligations. Certainly the government of South
Africa knew that is was creating problems for itself. Indeed, in a
last-ditch and desperate effort to insulate itself from those obligations,
on Friday the South African government … asked the ICC for an exemption
from its obligation, on the grounds that Bashir enjoyed immunity from
prosecution as he was attending an AU summit, and was therefore in the
country as a guest of the AU and not South Africa.
But turned down by the ICC, the ANC—the ruling party in the South African
government—wanted it both ways: the ANC National Executive Committee
declared yesterday (Sunday, June 14) that the ICC was “no longer useful for
the purposes for which it was intended,” and that this justified their
refusal to honor treaty obligations. “Ask for an exemption—but don’t take
no for an answer,” seems to have been the governing thinking.
What would the ANC and the AU put in place of the ICC by way of addressing
the need to bring to justice those who commit large-scale atrocity crimes?
We got a clear answer last year, at a July 2014 meeting of the AU:
A Pan-African court set up to prosecute the continent’s worst criminals
will not be allowed to try sitting heads of state or their cronies after
they voted to give themselves immunity. The continent’s leaders agreed [to]
their [own] exemption at a closed-door session of an African Union meeting,
and then tried to bury the decision in an obscure paragraph of the
post-summit communiqué. The decision was a “backward step in the fight
against impunity and a betrayal of victims of serious violations of human
rights,” said a spokesman for Amnesty International. More than 40 activist
organisations had opposed the move. *(New Zealand Herald*, 3 July 2014
<http://www.nzherald.co.nz/world/news/article.cfm?c_id=2&objectid=11287002>)
So much for the birth of the “African Court for Justice and Human Rights.”
[image: African-Union_2961294b]
<http://sudanreeves.org/wp-content/uploads/2015/06/African-Union_2961294b.jpg>
*Senior officials of the African Union voting to create the “African Court
for Justice and Human Rights” (July 2014). Buried within the authorizing
document is a provision by which they give themselves immunity from
prosecution for atrocity crimes while in office (July 2014) *
There is an ongoing debate about the merits of retributive, as opposed to
“restorative,” justice. The arguments for restorative justice are not
simple, and often reflect both pragmatic attitudes about ending violence
and traditional methods of achieving justice through reconciliation of
victim and victimizer. But the argument seems wholly inappropriate when
speaking about someone like Omar al-Bashir, who is of course protected
under the new “African Court for Justice and Human Rights.” Here is a man
who has presided for 25 years over a regime that has engaged in serial
genocide: in the Nuba Mountains in the 1990s, in South Sudan at various
points in the long civil war (1983 – 2005), and now again in Darfur (for
the past twelve years) and South Kordofan and Blue Nile states.
There is no imaginable “restorative” justice that is appropriate for
dealing with the massive crimes committed by the tyrannical al-Bashir
regime. He has been president of Sudan since the military coup that brought
the National Islamic Front (later the National Congress Party) regime to
power. Millions of lives have been lost in greater Sudan since the NIF/NCP
seized control of all military and political power in Sudan; many millions
have been displaced, perhaps 10 million civilians altogether; and the
country of Sudan has endured a perpetual struggle between the poor,
terribly marginalized regions and the center that is Khartoum and riverine
Sudan.
If after twenty-five years of war crimes, crimes against humanity, and
genocide retributive justice is not called for, then it never will be. But
it is irresponsible fantasy to believe that ruthless dictators and military
leaders in Africa, if they feel they are insulated from prosecution, will
not see this as a license to kill and engage in the most ruthless schemes
of self-enrichment. The evidence for this is simply overwhelming, whether
we look to Sudan, Chad, DRC and its neighbors, Eritrea, Libya, Zimbabwe,
along with many others.
South Africa’s refusal to arrest al-Bashir has moved the continent a step
further toward accepting this dangerous fantasy, a fantasy that continues
to be assiduously cultivated by the African Union Peace and Security
Council for selfish, not principled reasons. This development is inevitably
destructive of the ambitions for justice on the part of the ICC, currently
led by an African woman, Gambian jurist Fatou Bensouda.
[image: images]
<http://sudanreeves.org/wp-content/uploads/2015/06/images.jpg>
*Fatou Bensouda of Gambia, current Prosecutor for the International
Criminal Court*
The disgrace, and consequences, of the unconstitutional and
treaty-abrogating decision by the ANC government of South Africa will not
soon dissipate.
[*Eric Reeves*, a professor at Smith College, has published extensively on
Sudan, nationally and internationally, for the past sixteen years. He is
author of *Compromising with Evil: An archival history of greater Sudan,
2007 – 2012* (September 2012)]
Eric Reeves
Smith College
Northampton, MA 01063
413-585-3326
[email protected]
Skype: ReevesSudan
Website: www.sudanreeves.org
*Compromising With Evil: An archival history of greater Sudan, 2007-2012 *
www.CompromisingWithEvil.org <http://www.compromisingwithevil.org/>
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