By no means is this article intended to pronounce itself on the guilt or innocence of the Sudanese president, Omar al-Bashir. That will be too premature and preposterous because his guilt and innocence is what needs to be proven at the International Criminal Court (ICC).
Nor is the column addressing the merits or demerits of the arguments of whether the ICC has been and is being used against former or sitting heads of state, especially from Africa, and/or the developing world, because it does not need a rocket scientist to know this. It has been obvious that those who have so far been targeted by the ICC have been mostly from these regions, either Africa, Asia or even the Middle East. Why this has been the case remains to be seen.
As much as one cannot and should not jump to uninformed, ill-informed and even face-saving justifications that might be construed and interpreted as jumping onto the bandwagon of the African leaders, or Third World leaders, who seem to be against the ICC just because of their own ill-founded fear of the ICC getting to them one day. Getting to them for having done what? For crimes against their own people while fellows in their leaders’ club seem to have been doing nothing about the very same crimes committed by their fellow leaders without any or little whimper from them.
Crimes committed against a people by leaders without astounding silence on the part of other leaders abound, it would be futile to cite them. Most importantly, it must be recognised that the ICC is recourse of last resort, and most importantly against crimes committed against a people as against leaders. But rarely has one seen any action being taken against them. Hence, the essence of the ICC. Bottom line seems to be that nation-states big brothers, and sisters for that matter, seem hell fearful of the international community, period, otherwise how can one see and understand all this fuss about the ICC, the noble reasons for its establishment having or quickly becoming an abomination all of a sudden.
The essence is to zero in on the reluctance by the South African government to arrest, cause to arrest or surrender president al-Bashir, and what it could mean in terms of the country’s own creditability, whether internally or internationally in terms of upholding the rule of law. Politically, rather than finding itself in the ensuing conundrum and embarrassment, for not arresting or surrendering the Sudanese President, as a fugitive from international law, and thus also collaterally from South African law.
South Africa having acceded to the Rome Statute of the International Criminal Court, could have dealt with the matter differently. First and foremost, conscious of the warrant of arrest that has been issued against the Sudanese president, whether it believes in the charges against him or not, the South African government, should not have in the first place allowed the Sudanese president within her territory. There and then the matter would have been put to rest.
ICC’s failing notwithstanding, it remains a legitimate body, to which South Africa and her many African, Asian and South American sister and brother countries belong. Having acceded/ratified the instruments of accession, means that South Africa, as much as Namibia, have in international law obligations towards this body, and that the Rome Statute now takes precedence over either South African and Namibian laws. Thus, in this regard, the argument that the visiting Sudanese president should have been granted impunity does not hold water at all.
But the bottom line is that despite South Africa’s own seeming reluctance to meet her obligations in international law in arresting or causing the arrest of the Sudanese president, worst is she allowed a fugitive from international law to escape, and in the process thwarting her own laws by ignoring her own courts. It is immaterial what department or who may have been responsible for the escape of President al-Bashir. The fact remains that one or the other of the South African authorities helped a fugitive escape from its own laws and international laws.
This is a leader to whom, according to the allegation, human rights are only superficial. The latest omission and commission by the South African authorities, thus, is not helping in erasing this misperception, let alone allaying the fears of many ordinary African citizens seeming to have been at the sharper end of their leaders’ knives.