Ball's in Your Court

It is fair to say the 25th African Union (AU) Summit in Johannesburg was hijacked by the furor surrounding the presence of Sudanese President Omar al-Bashir. Indicted twice by the International Criminal Court (ICC) for war crimes and genocide in Darfur, Bashir sightings at the Sandton Convention Center, where the summit was held, were the favorite topic of media discussions.

The controversy surrounding Bashir's visit was fueled by the fact that the summit host, South Africa, is a signatory to the Rome Statute that forms the very basis of the ICC and therefore, was obliged to arrest Bashir on its territory. But South Africa granted Bashir legal immunity to attend the summit. However, the North Gauteng High Court in Pretoria, acting on an application by civil society organizations, issued a provisional order on the penultimate day, barring Bashir from leaving the country until a decision regarding his arrest and handover to the ICC had been made. He left anyway, deftly dodging a legal bullet.

South Africa, by its own hand, was placed squarely in the unenviable position of being between a rock and a hard place. As a member of the AU it is obliged to back its fellow members, in this case Sudan. Yet it must also adhere to and uphold the principles of the ICC.

This sword of Damocles threatens to create much internal conflict, as South Africa, a country with a democratic constitution, effectively disregarded its own independent judiciary when it allowed Bashir to leave the country. After the recent xenophobic attacks in the country were soundly condemned by the rest of the continent, the thought of arresting Bashir and again creating continental diplomatic pandemonium, while seemingly simultaneously backstabbing pan-Africanism, must have weighed heavily on the decision taken by the South African Government to let Bashir fly the coop.

However, the visit by Bashir, whose genocide indictment by the ICC is the only one against a sitting head of state, could have been handled much more effectively. The fact that his appearance was not confirmed until the last minute was a clear indication of a lack of transparency and forced a shift in media and delegates' attention from critical summit issues.

There is growing opposition in Africa to the Hague-based ICC, with detractors, like AU Chairman Robert Mugabe, telling media at the summit closing ceremony that African countries should withdraw from the ICC because he believes it unfairly targets African leaders.

After the dust has settled on Bashir's visit and its fallout, the question must be asked why South Africa remains a member of the ICC if it does not adhere to the obligations it has committed to. A lack of clarity on the legal decisions taken can only damage the country's global reputation, as it sends out a signal of disrespecting both international law and its own courts. 

THE EDITOR