To explain is not the same as to support. This is what has not been understood in much of the public discourse on Sudanese President Omar al-Bashir’s departure from South Africa in defiance of a court order. I do not support the decision that allowed al-Bashir to leave South Africa? The reason is that it violated a court order. This is a dangerous precedent because if it consolidates into a trend, it could further compromise the accountability of political leaders to the citizenry and result in the abandonment of the goals of an inclusive economy and consolidated democracy.
If this is true, we then need to understand why political leaders made the decision that they did? Some would suggest that they are inherently undemocratic and that this was an example of corrupt African leaders standing together. But I do not buy this, not only because of the implicit racism in this assumption, but also because of the widespread understanding of the dilemma that confronted political elites in South Africa.
The matter of arresting Al-Bashir was not as simple as that portrayed by the Southern African Litigation Centre and many human rights activists. There is no doubt that South Africa has an obligation to enforce a warrant of arrest issued by the ICC. But it also has a political obligation to enable productive relationships with member countries of the African Union, if only to realise our vision of a peaceful and prosperous Africa. The latter goal, which is itself central to a rights based future, would have been imperiled if South Africa had arrested Al-Bashir or any other head of state.
Government was aware that these two obligations were in conflict with each other and tried to manage this through gazetting an agreement signed by the Minister of International Affairs, Maite Nkoane-Mashabane, granting diplomatic immunity to delegates participating in the African Union summit. This, however, was overturned by the courts. When these two obligations again came in conflict with each other, government allowed its obligation to the African Union to trump that to the ICC. This was not surprising. Government gambled that it would let Al-Bashir leave, subsequently blame his departure on an errant official, and then probably reward this very individual for taking the fall through an ambassadorial appointment. We have been here before.
But this only serves to explain why government made its decision. It does not explain the widespread questioning of the bona fides of the ICC itself by a cross section of political leaders, academics, public intellectuals, and even some civic activists.
Is there any validity to the charge that the ICC is anti-African? No! Many of its leadership are African, and its actions against African tyrants are ultimately directed to defending African citizens. But there is legitimacy to the charge that the ICC’s institutional and legal apparatus has been directed to some human rights violators and not others. How does one explain action against Al-Bashir and not Bush and Blair? All three were, after all, responsible for the murder of hundreds of thousands by their propensity to wage unjust wars.
Moreover, how does one explain the ICC’s responsiveness to the requests of the UN Security Council when the US, Russia and China have not ratified the Rome Statute? The US, through the UN, is utilizing an institutional architecture that it does not subscribe to against tyrants whom it does not approve of. It does not use it against tyrants within its midst or those it approves of. And the institutional architecture – the ICC – is only too willing to play the role of chief imperial prosecutor in this regard.
How is this to be understood? The only explanation is power. Al-Bashir, while strong in Sudan, is relatively weak in the global order. Bush and Blair, on the other hand, represented imperial power and its proxy respectively. The ICC defends this state of affairs on the grounds that it does not have jurisdiction over the US and the Iraq war. But this simply proves that the ICC is unwittingly becoming an institutional agent to address some violators and not others.
Some human rights activists maintain that this is okay because it is at least a start. They argue that we should simply be motivated by principle. However, to act on this principle in abstraction from an understanding of imperial and great powers and their foreign policies can have the effect of consolidating an unequal world. It can also establish a situation where rules do not apply equally to all. If you are an autocrat in the developing world who wages war, you can be held accountable. But if you are a leader in the US, its allies, or one of the other great powers, you need not be concerned about acting outside the rule of law because there is no accountability regime for you.
These are the kinds of issues that the Southern African Litigation Centre, Kenneth Roth of Human Rights Watch, and other activists have failed to consider. They are the equivalent of the European missionaries of old who ventured forth on the African continent to civilize the natives and unwittingly became the advanced guard for colonial subjugation. So too do these activists run the risk of the paving the way to hell with their good intentions.
One other argument of human rights activists must also be subjected to critical scrutiny. There are some who have simply defended taking action against Al Bashir, and not against Bush or Blair, on the grounds that the former has a warrant of arrest against him. For these legal fundamentalists the law is always right and must be observed unthinkingly. But apartheid law was immoral, and we opposed it. Fascist Germany passed laws that were immoral and we fought them. These exemplars of unethical laws demonstrate that at a minimum one must always subject decisions to a critical lens, even when it is advanced by a legal institutional authority.
Where do we go from here? Some, like the EFF, have suggested that we withdraw from the ICC. I do not support this for then we would have descended to the lowest common denominator on the human rights scale. This would help no one, least of all marginalized communities on the African continent. Instead, what is required is to use the legal infrastructure of the ICC to hold not only African autocrats accountable, but to challenge global power relations by enabling Bush, Blair and other imperial warmongers to be brought to book as well.
I propose that South Africa and the rest of the continent continue to participate in the ICC on three conditions. First, the ICC must not have any political or legal engagement with, or take any mandate from, the US or any other non-signatory nation. Second, citizens of non-signatory countries can be employed by the ICC only if they formally disassociate from the refusal of their governments to sign the charter. Third, the ICC mandate must be extended to cover rights abuses everywhere, including Iraq, and Bush and Blair must be investigated for war crimes.
When we have warrants of arrest for Al-Bashir, Bush and Blair, then the credibility of the ICC will be restored. South Africa and the rest of the African signatories must commit to arrest all three warmongers and European nations must be willing to do the same. The Europeans need to recognize that it is no longer acceptable to run with the hares and hunt with the hounds. If they believe in rights, then these must apply equally to all. This is the only way that the warmongers and human rights violators in the US, as in Africa, will realise the consequences of their actions. They will be confined to their home countries or risk arrest. The world will be closed to them.
Only then will we have the potential for peace. Only then will the human rights community and the ICC be able to act on their mandate in a way that does not reinforce the status quo, but rather challenges global power relations so that we are all treated as equals. Is this not the true purpose of human rights?
- Accelerating Transformation
- Statement from the Council of the University of the Witwatersrand