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South Africa’s conspiracy to frustrate the ICC

Published: 
Sunday, June 21, 2015

The refusal by the South African Government to honour the request made by the International Criminal Court (ICC) to arrest Omar Hassan Ahmad Al Bashir, the President of Sudan, has thrown the international criminal justice system into disarray.

President Al Bashir has been charged by the ICC with the crime of genocide, crimes against humanity, and war crimes. He is accused of masterminding the extermination of members of the Fur, Masalit and Zaghawa ethnic groups, acts of torture and rape, direct attacks on civilians, and the deliberate infliction on those groups conditions of life calculated to bring about their physical destruction as ethnic entities. 

The investigation which led to the charge was initiated by a United Nations Security Council Resolution which affirmed that “justice and accountability are critical to achieve lasting peace and security in Darfur.” No criminal proceedings have been commenced in the Sudan for the atrocities which led to the murder of more than 300,000 people. 

In fact, the ICC prosecutors were made aware of instances where officers had been incarcerated for refusing to carry out Al Bashir’s orders to commit genocide. The prosecution had gathered evidence which showed that the Armed Forces, often acting together with a private militia called the Janjaweed, singled out villages and small towns inhabited mainly by the Fur, Masalit and Zaghawa. They went out of their way to protect villages inhabited predominantly by tribes aligned with Al Bashir.

Typically, the Armed Forces and the Janjaweed would surround a village and then launch their attack. After subjecting women and girls to “massive rapes,” they would kill men, women, children, and the elderly indiscriminately and then burn and loot the villages. 

The weapon of rape, in particular, was used as an instrument to suppress the will and spirit of the targeted groups. Girls as young as five years old were not spared. The result has been the displacement of more than two-and-half-million people from their homes. 

In a telling passage in the prosecutors’ summary of the case, the concerted attempt to cause the complete disintegration of communities is recorded: “They destroy food, wells and water pumping machines, shelter, crops and livestock, as well as any physical structures capable of sustaining life or commerce. They destroy farms and loot grain stores or set them on fire. The goal is to ensure that those inhabitants not killed outright would not be able to survive without assistance.”

The ICC does not have a police force at its disposal. It does not have the means to arrest offenders and bring them before the court. It depends on member states to apprehend perpetrators. 

South Africa signed the treaty establishing the ICC and, like the other 122 member states, has bound itself to detain any person charged by the ICC and turn them over for trial. Without the assistance of member states in this way, the ICC is powerless to carry out its mandate. 

Weeks before Al Bashir was due to travel to South Africa to attend the summit of the African Union, the ICC sent a diplomatic note asking the South African government to execute the arrest warrant. 

Far from laying plans to fulfill its duties under the ICC treaty, the Government quietly gazetted a clause guaranteeing immunity to all delegates to the summit and laid plans to spirit Al Bashir out of the country at the appropriate moment. It appears that they even defied an order of the South African High Court to detain him while the court considered arguments that Al Bashir was immune from arrest.

An ANC spokesman was candid enough to admit that the South African Government had chosen to prefer the political imperatives of furthering African unity over the rule of international law. Politics was elevated above justice for the victims of enormous human rights abuses.

South Africa has long been grappling with its continued membership of the ICC. Like many other African states, they are alarmed at the fact that the investigations which the ICC has launched have focused primarily on African leaders, while war crimes committed by the Israelis in their interminable occupation of Palestine, and by the Americans in their unwarranted invasion of Iraq, go unpunished. 

How can the arrest and prosecution of Al Bashir be justified when George Bush and Tony Blair go scot free, they ask? Robert Mugabe quipped a few days ago, probably tongue in cheek, that it was time for the African Union to establish its own court to prosecute non-African offenders.

Part of the flaw in the system is the fact that the countries with the largest standing armies, the United States, Russia, China and Israel, are not members of the ICC and therefore not automatically subject to its jurisdiction. In addition, the offence of aggression, which is more suited to a charge of illegally invading a country, has not yet been defined in the ICC’s statute, making it impossible for complaints brought against the United Kingdom for its part in the Iraq war to be processed. 

Unlike the US, the UK is a member of the ICC. A full analysis of the ICC’s record of prosecutions is beyond the scope of this article, limited as it is by space. But it is surely sufficient to say that so long as South Africa continues to subscribe to the ICC treaty, it must assist the court in its efforts to prosecute human violations of immense proportions. 

The mass murderers of the Fur, Masalit and Zaghawa people are unlikely to face local justice, at least while Al Bashir continues to hold office. In fact, the mere existence of the outstanding warrants for his arrest is impetus enough for him to use all means necessary, including force, to keep himself in office.

South Africa’s conspiracy to frustrate the ICC efforts to make Al Bashir answer for his crimes serves only to entrench the culture of impunity which the establishment of the ICC was designed to eradicate.

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