Chifu Wa Malindi
I think what is absurd is that Sudan as a state has no right to defend its self
but Israel does. Which reminds me how Iddi Amin never had any right to defend
us as Ugandans from killers that were stationed in Tanzania. A people that have
murdered so many people in our country since 1979 to today.
Yet no one is complaining for they are not killed by Amin.
EM
On the 49th Parallel
Thé Mulindwas Communication Group
"With Yoweri Museveni, Ssabassajja and Dr. Kiiza Besigye, Uganda is in anarchy"
Kuungana Mulindwa Mawasiliano Kikundi
"Pamoja na Yoweri Museveni, Ssabassajja na Dk. Kiiza Besigye, Uganda ni katika
machafuko"
From: [email protected] [mailto:[email protected]]
Sent: Tuesday, June 16, 2015 12:40 AM
To: [email protected]
Subject: [Mwananchi] Why South Africa let Bashir get away
And the theatre of absurd continues...
OPINION
Why South Africa let Bashir get away
Once again, the ICC comes out as a toothless entity in the wrangling over
African leaders accused of war crimes.
15 Jun 2015 16:29 GMT | Politics, Human Rights, Africa, African Union, Omar
Bashir
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Sudanese President Omar al-Bashir [AFP]
Sudanese President Omar al-Bashir [AFP]
ABOUT THE AUTHOR
Mehari Taddele Maru
Mehari Taddele Maru is a specialist in international human rights and
humanitarian law, an international consultant on African Union affairs, and an
expert in Public Administration and Management.
A provisional court order was issued on Sunday to prevent Sudan's President
Omar al-Bashir from leaving South Africa where he had been attending the
African Union (AU) summit. This provision catapulted South Africa into the heat
of the international news media's spotlight.
Regardless of the effectiveness of this court order, the situation entwines
South Africa, the AU, and the International Criminal Court (ICC) in a legal
squabble, and a political and diplomatic controversy. Most crucially, as the
Sudanese president was not arrested and handed over to The Hague, once again
the ICC has come out looking like a toothless entity embroiled in political
wrangling. It has further diminished its international image as an independent
global body fighting the good fight.
Court orders Sudan's Bashir to remain in South Africa
Impaled upon the horns of a dilemma, South Africa had to choose between two
diametrically opposed duties: Its obligation as an AU member state to support
its fellow member state Sudan; or its role as a state party to the ICC with a
duty to arrest and hand over Bashir.
It appeared to have opted for the former when reports emerged on Monday
afternoon that Bashir's plane had left South Africa.
ICC in Africa
Respecting its responsibilities to the ICC by arresting Bashir would have meant
a total violation of the AU's repeated decisions of non-cooperation with the
ICC on any cases related to Kenyan and Sudanese leaders.
In October 2013, an extraordinary AU summit was called to deliberate the role
of the ICC within Africa. The member states agreed to fight the ICC, and its
global influence, through diplomatic channels by appealing to the United
Nations Security Council. They chose to limit the ICC's mandate to take cases
on any sitting heads of state and senior officials of governments across Africa.
To do this, they expanded the powers of a unified African court and called on
countries to individually withdraw from the Rome Statute, which established the
ICC.
Respecting its responsibilities to the ICC by arresting Bashir would mean a
total violation of the AU's repeated decisions of non-cooperation with the ICC
on any cases related to Kenyan and Sudanese leaders.
By honouring this AU decision, South Africa directly disregards its duties to
the ICC, to the global community, and to its own judiciary's decision that
issued the court order, which restricts Bashir's travel.
In doing so, South Africa faces a double-edged sword. As a country with
democratic constitutionalism that respects the separation of state powers,
including the independence of the judiciary, South Africa is expected to
execute and enforce any decisions handed down by its courts.
Having failed to do so, the South African government will probably find itself
entrenched in a domestic political dispute that may have far reaching
consequences for the independence of its judiciary, and the overall stability
of the country.
Systemic failure
On the other hand, by honouring the wishes of the ICC, South Africa would have
avoided another international diplomatic crisis in the pan-African landscape
after the recent condemnation following an array of attacks on African migrants
within its borders.
Indicative of a systemic failure to learn from the similar xenophobic attacks
on African migrants in 2008, the 2015 attacks have been dubbed as "Afrophobia".
Furthermore, various diplomatic missteps on African crises such as those in the
Ivory Coast, Libya, Somalia, Eritrea etc, have left African countries to
consider South African foreign policy as inconsistent and unpredictable at best.
Within the political climate and culture of the AU, South Africa's cooperation
with the ICC on Bashir's case, would, for some, have been seen as tantamount to
the betrayal of pan-Africanism. And, it could have been seen as serving the
perceived neoliberal colonialist enemies of modern Africa and its sovereignty.
A major issue surrounding the ICC stems not from questions of whether or not it
should prosecute African leaders, but rather why it seems to prosecute African
leaders exclusively.
The questions surrounding Africa's relationship with the ICC and wider global
community seem endless: Are Africans the only ones committing crimes proscribed
by the Rome Statute? Should the UNSC enjoy the privilege to refer and defer
powers as it does now? Did this privilege of referral and deferral of powers
politicise the ICC's judicial role and lead to the application of a double
standard?
The AU and its proponents argue that there is an unholy alliance between the
ICC and the UNSC, where the UNSC is not publicly considered as a just
institution. The UNSC's referral and deferral power reduces the higher ideal of
international justice to the diminished reality of a selective justice wielded
by the powerful over the powerless.
Quintessential problem
These powers of the UNSC bring the quintessential problem of international
politics to the ICC; that political power will always determine the fate of
those being indicted. Another issue of contention lies within the concepts of
impunity and how it relates to the immunity of officials of non-state parties
to the ICC.
The ICC argues that the immunity of all persons it decides to indict can be
suspended when the court chooses to exercise its jurisdiction on officials of
state parties, and even non-state parties, due to the binding nature of the
UNSC decisions.
Thus, South Africa's President Jacob Zuma was faced with two choices that would
yield equally undesirable results. However, there was a possible third action.
Zuma could have used his presidential powers, or a prior agreement with the AU
or Sudan, that bestows total immunity to the delegates of the AU Summit as
required by the hosting agreements, the AU decisions on the ICC, and could be
based upon international conventions of diplomatic immunity.
Threatening the very foundations of the ICC, the indictments of presidents and
the absence of actual arrests have raised patriotic sentiments that were
misused in election campaigns in both Kenya and Sudan. What's more, the
deterrent effect of the ICC and its indictments in Africa could be effective,
not against those already indicted but against those who might have the power
to commit crimes as newly elected or appointed leaders.
Regardless of Zuma's decision to let Bashir leave the country, the current
dilemma will not be limited to South Africa. It will complicate the already
tumultuous relationship between the ICC and the AU and the intense debate
surrounding ICC's place in Africa.
Mehari Taddele Maru is a specialist in international human rights and
humanitarian law, an international consultant on African Union affairs, and an
expert in public administration and management.
The views expressed in this article are the author's own and do not necessarily
reflect Al Jazeera's editorial policy.
Source: Al Jazeera
http://www.aljazeera.com/indepth/opinion/2015/06/south-africa-bashir-150615102211840.html
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