“This week’s al-Bashir saga raises, once more, a fundamental question: does South Africa need the AU more than the AU needs South Africa?” Peter Fabricius, ISS Consultant.
The chairperson of the ANC’s International Relations Portfolio Committee in Parliament, Siphosezwe Masango, announced on Monday that the committee may advise government to relook at its membership of the ICC. And an anonymous cabinet minister told Independent Newspapers more forcefully: ‘We no longer recognise the ICC’s jurisdiction over Africa. We will start the necessary proceedings in parliament to release us from the ICC.’
Withdrawing from the ICC is something the government should have done before al-Bashir arrived in South Africa, to avoid breaching its legal obligations by not arresting him, said University of KwaZulu-Natal law professor and senior research associate at ISS, Max du Plessis. Although it should be noted that some legal obligations remain even after member states withdraw from the ICC’s Rome Statute.
Du Plessis told Independent Newspapers it would in any case be tragic for South Africa to withdraw from the ICC, given its previous support for the court. ‘It would not send the right message to the victims of such crimes, and it would undermine our commitment to the rule of law.’
That now seems to be history, as the ANC government, even if clumsily and whether by design or accident, appears to have arrived at a moment of truth. It seems on the verge of finally resolving the tension that has been growing for some time, between its international (and of course domestic) legal obligations and its solidarity with Africa.
That tension created a serious ambivalence in South Africa’s ICC and Africa policy.
Although South Africa officially invited al-Bashir to visit in 2009 and 2010, government made it known at the time that it would have to arrest him if he arrived. Following the first ICC arrest warrant of al-Bashir in 2009, AU leaders adopted a policy that obliged its member states not to cooperate with the ICC in his arrest. South Africa was officially part of that decision and Zuma did not register any reservations about it, as Botswana’s President Ian Khama had done. But nor did he publicly support it.
That changed after the ICC indicted Kenyan President Uhuru Kenyatta. Zuma and his government became increasingly vocal in support of the AU position that the ICC should defer Kenyatta’s indictment. Pretoria also vocally backed the AU efforts to amend the Rome Statute to give immunity to sitting heads of state.
With the arrival of al-Bashir in South Africa, the tension evidently became too great, and the hitherto elastic line between the two poles of policy snapped. In a sense, that tension was also between Africa and some Western powers who are the chief advocates of the ICC.
What the consequences will be in the wider world of South Africa breaching its ICC commitments, and breaking its own law, are not yet clear. Some observers believe that this lack of respect for the rule of law may further deter investors and even influence credit ratings.
But of course the hospitality shown to al-Bashir has already boosted, and will continue to boost, South Africa’s standing in the AU and most of Africa. As a senior government official put it this week: ‘Our African obligations supersede all others. Africa is the centrepiece of our foreign policy.’
Please read the full text by Peter Fabricius, ISS Consultant, by clicking HERE.