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Sudan, South Africa and the future of the International Criminal Court in Africa By Mark Kersten (October, 13, the Washington Post) Many believe Sudan’s President Omar al-Bashir is the person most responsible for the alleged genocide in Darfur. As such, he isn’t supposed to travel freely around the world. But this past June, Bashir visited South Africa for an African Union summit. His trip flew in the face of the International Criminal Court (ICC), which has issued orders for his arrest on charges of crimes against humanity, war crimes and genocide. South African officials now openly talk about leaving the ICC over a perception that it is biased against Africa. What will the political fall-out of Bashir’s visit mean for South Africa, its role in international relations and its relationship with the ICC? The South African government’s response to Bashir’s visit carried significant reputational costs, and sparked a domestic political crisis. The country was the target of widespread condemnation and criticism. The New York Times described South Africa’s behavior as “disgraceful,” while the Economist wrote that the episode signaled that “Nelson Mandela’s legacy has been soiled.” But why has South Africa risked besmirching its international reputation? And why, in the legal and political maneuvering that followed, has it thought it necessary to jump through all of these legal hoops in order to satisfy the international community and the ICC that it is in the right? South Africa’s approach to the ICC is part of a larger set of questions about the place of emerging states in the world order. How will the rise of the BRICS (Brazil, Russia, India, China and South Africa) affect the foundational norms of the international criminal justice? The Bashir visit brings these long-simmering questions into sharp focus. Many proponents of international criminal justice viewed South Africa’s decision to host Bashir in June as nothing short of a tragic betrayal. For skeptics and critics, however, it signaled another in a long series of crises for the court. There is more going on here than the traditional debates over state interests versus the law or the impotency of international criminal justice. Both of these positions occlude a more important story: how South Africa engages with the ICC while balancing its emergence as an international power and a regional leader. Part of the promise of a permanent regime of international criminal justice is that it will isolate the world’s worst perpetrators of mass atrocities. The marginalization of Bashir was supposed to be a success for the organization. Not long ago, the Court’s former chief prosecutor Luis Moreno-Ocampo proudly declared that Bashir “is not under house arrest, he is under country arrest.” In the past few weeks, however, Bashir has visited two of the BRICS (South Africa and China) and been invited to a third (India). His recent state visit to Pretoria presents a stark challenge both for diplomats as well as scholars and observers of international criminal justice.
During and since Bashir’s visit, South Africa has been seeped in legal and political controversy. Domestic actors and institutions, including human rights advocates and legal clinics, have demanded action. A local high court subsequently ruled that the government had violated not only its international obligations to the ICC but, crucially, its own domestic statutes. That ruling was upheld on appeal. The crisis precipitated an unprecedented tête-à-tête between the country’s judiciary and executive leaders, and has seen the word “impeachment” bandied about. Taken together, South Africa’s responses, both legal and political, have been, to put it politely, creative. First, the government’s legal representatives proclaimed that they didn’t know where Bashir was, even as Bashir’s official convoy drove through the cleared-out and closed streets of Pretoria. As proceedings endured and Bashir’s plane lifted off, those same lawyers finally admitted that Bashir had fled. Then, the South African government insisted that its obligations to the ICC to arrest Bashir are in conflict with its obligations to the African Union to grant all AU heads of state diplomatic immunity. This, however, contradicts the government’s own practice. South African President Jacob Zuma had previously declared that the Sudanese president was unwelcome in the country and that he would be arrested if he stepped on South African soil. There have also been suggestions that Sudanese troops surrounded a contingent of South African peacekeepers based in Darfur and strong-armed South Africa into ensuring Bashir’s safe departure. The government wisely chose not to promote this as an excuse for its actions, as it would have portrayed South Africa as a vulnerable and impotent state at the whim of Khartoum’s belligerence. Most recently, the government shifted gears yet again. This week, it maintained that, because it did not have an opportunity to reply to the ICC’s initial legal order to arrest Bashir, “South Africa is of the view that a serious infringement of South Africa’s rights as a State Party has taken place and that the Court has acted against the letter and spirit of the Rome Statute.” In other words, the government is arguing that because it didn’t have a chance to negotiate its obligations to the ICC under its own domestic law, the ICC and not the government actually violated the Rome Statute. While some officials have threatened that South Africa will withdraw from the ICC, the government’s shifting tactics demonstrate that it is truly concerned about this case. As one legal advisor to the government opined, “If it were true that the [South African] government didn’t
Should South Africa have arrested Sudan’s president? By Mark Kersten (June, 15, the Washington Post) When Sudanese President Omar al-Bashir decided to attend the recent African Union (AU) Summit in South Africa, he must have thought it presented yet another opportunity to escape his pariah status. Bashir holds the notorious distinction of being the only person whom the International Criminal Court (ICC) indicted for the unholy trinity of international crimes — crimes against humanity, war crimes and genocide. South Africa has been a traditional defender of the ICC and has previously insisted that it would arrest Bashir if he stepped foot on its territory. His visit to South Africa with impunity seemingly sent a powerful signal that the ICC’s indictment no longer constrains his movements. Instead, South African courts moved to ban Bashir from exiting the country as they considered whether and how to fulfill its legal obligation to arrest him and turn him over to The Hague. Thus, while Bashir managed to escape the country and the ICC’s credibility was certainly taken a hit, there are also positives to take from the Sudanese president’s visit — and the responses to it. Bashir was first indicted by the ICC in 2009 for his alleged role in ordering mass atrocities in Darfur. The fact that he has never been tried for those crimes and has successfully traveled to several countries including Saudi Arabia, Kenya and the Democratic Republic of Congo, is an ongoing stain on the court’s record and an insult to the victims of atrocities in Darfur. To date, however, South Africa is the most diplomatically influential ICC member-state to host the Sudanese president. Had his visit passed smoothly, other states may have felt emboldened to host Bashir in the future. That would have been potentially catastrophic for the ICC and its champions. However, the outcome of Bashir’s South African visit was something very different. While his arrival took observers by surprise, given the ICC warrants against Bashir, coverage of the AU Summit was dominated by questions over the wisdom and legality of hosting Bashir. The South African government was forced to consider whether it was obliged to arrest the Sudanese president — and to legally justify its position. Further, the government felt it necessary to identify legal loopholes, such as having Bashir depart from a military, rather than civilian, airport, in order to guarantee his safe passage out of South Africa. In other words, it is wrong to assume that South Africa could simply do whatever it wished. The ICC had an impact on the country’s political and legal calculus — even if the results left much to be desired. The AU Summit will also help to clarify the complex and dynamic relationship between African states and the ICC. South African diplomats and lawyers have argued that there are ambiguities with regards to their obligation to arrest Bashir and that they are torn between their obligations to
the ICC and those they have to the African Union. In time, those arguments will be tested and judged. Moreover, African states and diplomats continue to play an indispensable role in supporting the work of the ICC. What we have witnessed in the past few days is an outpouring of criticism of the government of South Africa, not only from Western states but, most importantly, from across Africa. It will be increasingly implausible for African governments not to clarify their positions regarding their support of, and obligations to, the court. Although Bashir has already left South Africa, the order of arrest from a court in Pretoria will also help set a precedent and clarify the precise obligations states have toward the ICC. By hosting Bashir, the South African government unwittingly raised the costs of its insolence. Not only are they in violation of their legal obligations to the court but they have been, in essence, found to have violated domestic law as well. The likelihood of a repeat visit has surely been diminished. While fears over the repercussions of Bashir’s visit have received the majority of public and media attention, African leaders’ support for the ICC has also been on full display. Just days before the summit, Tanzanian President Jakaya Mrisho Kikwete visited the court to declare that: “Our support for the ICC is based on the important work that the Court is doing.” That followed Malawi’s decision to undermine any attempts by Zimbabwean President Robert Mugabe to push for an Africa-wide pull-out from the ICC at the AU Summit. In response to Bashir’s arrival to the summit, Sidiki Kaba – who is the president of the Assembly of States Parties of the ICC as well as the justice minister of Senegal – exclaimed his “hope that South Africa, which has always contributed to strengthening the court, will spare no effort to ensure that the warrants of arrest are executed.” In short, there was no shortage of support for the court and anti-ICC sentiment in Africa is far from universal. Even the nature of Bashir’s visit suggests that the ICC isn’t an impotent institution. Upon arrival, the Sudanese president wasn’t greeted with red carpet treatment or a marching band. There was no photo-op on the tarmac, leaving some journalists to initially ponder whether Bashir had actually made it into the country at all. He did not emerge in the public eye until the next day for a group photo that had been delayed for five hours. Following the announcement of the travel ban, reports – including from one of his own ministers – indicated that Bashir had already returned to Sudan. Though, he was apparently keeping a low-profile while attending meetings at the summit. When he finally did depart in violation of the order against leaving the country, Bashir became the only African leader who had to flee South Africa rather than return back home.
PSC124 Fall, 2015 Assignment 2 Please type up your answers to the questions, and bring a hard copy to the class on November 16 (Monday). You can consult your textbook and the lecture slides, but please write your answers in your own words. Do not collaborate with your classmates. Part 1 (40 points): This question will help you practice an analysis of policy options, which you are going to do with your topic for the final paper. Read the situation described below, and answer the questions. (You can also read the two articles on the course blackboard website for a quick overview of what happened.) The International Criminal Court issued orders for the arrest of Sudan’s President Omar al-Bashir on charges of crimes against humanity, war crimes, and genocide (on all three!), but he has evaded such orders so far. This past June, he made headlines by “freely” visiting South Africa for an African Union summit despite those orders, and South Africa was heavily criticized by many for letting him do so. Now, let’s assume that 1) it is before the summit, and that 2) you are an advisor to those decision-makers in South Africa, so you need to recommend what the government should do regarding this situation. Question 1. Evaluate these policy options (in other words, discuss benefits and costs of each policy option). 1) Trying to stop him from visiting South Africa (such as threatening to arrest him/ not giving him visa.) 2) Letting him in and arresting him. 3) Respecting immunity that is given to all summit participants (so, letting him in and not arresting him). Question 2. As an advisor, what would you recommend and why? Do you have any other ideas? If so, please explain your option(s). Part 2 (40 points): 1) Provide an outline for your final paper with a brief explanation for each part (e.g. what you want to discuss in each part) 2) List at least three scholarly sources you are planning to use for the paper.
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