Whether South Africa really had to make the stark choice this week between honouring its international and domestic legal obligations on the one side, and fulfilling its commitments to Africa on the other, is a matter of conjecture.
It would have required no great foresight by Pretoria to visualise the dilemma that would arise this week when Sudan’s President Omar al-Bashir arrived for the African Union (AU) summit in Sandton and human rights groups predictably tried to have him arrested as a fugitive from justice.
Knowing what was coming, Pretoria could and arguably, should, simply not have offered to host the summit, which it did in January only after Chad told the AU it was unable to do so. Or did Pretoria believe it could do what it had done in 2009 and 2010 – that is, officially invite al-Bashir to President Jacob Zuma’s inauguration and the FIFA World Cup respectively, but then unofficially disinvite him?
The ANC government appears to have arrived at a moment of truth
There are some suggestions that that strategy was tried this time, but al-Bashir simply refused because this was different; this was an AU not a South African event. And al-Bashir would have had the unstinting support, if it came to that, of Zimbabwean President Robert Mugabe, the current AU chairperson, who detests the International Criminal Court (ICC). In this scenario, the intervening outbreak of xenophobic violence in South Africa, much of it directed against other Africans, seems to have given the government little choice.
As a senior AU official said privately, if South Africa had blocked al-Bashir from entering the country, that, coming on top of the great anger caused by the xenophobia, would have badly damaged South Africa’s standing in the AU.
But some officials are saying that Pretoria knew all along what was coming and let it come, because it wanted to make an important shift in its policy towards the ICC and this was the moment, and the way, to do it. The fact that the ruling African National Congress (ANC) moved so swiftly to announce that it intends withdrawing South Africa from the ICC, suggests premeditation.
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.’
The hospitality shown to al-Bashir has boosted South Africa’s standing in the AU and most of Africa
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.
It would be tragic for South Africa to withdraw from 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.’
Only one lonely voice has been heard from African leaders criticising Pretoria – that of Khama, who issued a statement saying it was disappointing that al-Bashir had avoided arrest, and calling on ICC member states to fulfill their obligations.
If South Africa leaves the ICC, as is now expected, it could also raise questions about how vigorously it will continue to defend other values in Africa – such as respect for lesbian, gay, bisexual, transgender and intersex (LGBTI) rights.
And what it will get in return from Africa remains unclear. At the summit, South Africa tried to unblock the logjam in UN Security Council reform by suggesting an easing of Africa’s maximalist position articulated in the Ezulwini Consensus. But Mugabe shot that down, saying that Africa would never trust the African countries (meaning particularly South Africa and Nigeria) as its representatives on the Security Council, because they voted for UN Security Council Resolution 1973 in 2011, which authorised military action against Libya to prevent Muammar Gaddafi slaughtering his opponents.
However, if Pretoria thinks that parting company with the West over issues like the ICC will help it curry Africa’s favour and win its backing for a permanent seat on the Security Council, it will have to think again. South Africa’s vote on Resolution 1973 was just a convenient excuse and the likes of Zimbabwe, Egypt and Algeria – who don’t want South Africa on the Security Council simply because they are jealous of its power – will find other excuses, if needed.
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