RECENT events have brought SA’s relationship with the International Criminal Court (ICC) into sharp focus. Last month was dominated by the question of whether SA — a party to the ICC — would break ranks with an African Union (AU) resolution calling on its members to defy the international arrest warrant issued by the ICC for Sudan’s President Omar Hassan al-Bashir.
SA’s recent clarification — that Al-Bashir would be arrested should he set foot on South African soil — should be welcomed. SA’s next, and possibly more difficult, test will be how it responds to the “Gaza docket” filed recently by civil society organisations requesting that the National Prosecuting Authority (NPA) and the Directorate for Priority Crimes Investigation investigate individuals for war crimes committed in Israel’s recent offensive in Gaza during Operation Cast Lead.
In broad terms, these developments illustrate how the ICC and SA’s ICC Act are designed to operate. Both the Al-Bashir saga and the Gaza docket are controversial and complex. The way in which our institutions respond to them will be a measure of how seriously SA takes its international obligation to combat impunity.
Last month’s AU resolution — stressing that member states would not co-operate in the arrest and surrender of African indicted personalities — was quickly condemned as a betrayal of Africa’s commitment to end impunity for human rights atrocities, and an international treaty violation (of the 30 African states that are party to the ICC, only Botswana publicly distanced itself from the AU move). SA — which supported the resolution — was singled out for severe criticism given its leadership role on the continent, the quandary for Pretoria exacerbated by the fact that SA is one of only three African states to domesticate (through its ICC Act) its treaty obligation to prosecute international criminals.
“After taking legal advice on the matter”, the new Department of International Relations and Co-operation happily yielded to the rule of law. The department portrayed the matter as a purely legal process for the courts, deferring to the principles of our constitution and respect for the ICC Act (without explaining where such high-minded, legalistic tendencies were when the AU resolution was passed in Sirte). The announcement came shortly after an international arrest warrant for Al-Bashir was endorsed by a Pretoria magistrate.
Then came the Gaza docket, submitted to the NPA and the Hawks by the Palestinian Solidarity Alliance and the Media Review Network. The 3500-page docket alleges that certain individuals who fought in Operation Cast Lead are guilty of international crimes. The organisations instructed a team of leading international lawyers, headed by Prof John Dugard, to settle the docket, which calls on the authorities to use the provisions of our ICC Act to prosecute both Israeli officials and, more pertinently, South Africans identified as having been implicated in war crimes during Operation Cast Lead.
In the aftermath of the AU resolution, which called into question SA’s adherence to its international obligation to co-operate with the ICC, the authorities will now have to decide how to address the Gaza docket, which calls on them to take action nationally.
The law implicated by these developments should not be marginalised by the political considerations and ramifications that surround and threaten to engulf them. Both the Al- Bashir arrest warrant and the Gaza docket turn on the implementation of SA’s ICC Act, enacted by Parliament to incorporate and operationalise SA’s commitment to international criminal justice. The developments delineate the two main functions of the ICC Act: to allow our local courts and police service to co-operate with the ICC in apprehending suspects indicted by the ICC (like Al-Bashir); and to ensure we fulfil our treaty obligations domestically to investigate individuals (like those named in the Gaza docket) — who are South African or come within our jurisdiction — suspected of war crimes, genocide, or crimes against humanity. This second function is the ICC’s leitmotif of complementarity: obliging member states to act domestically by investigating and prosecuting these crimes or, if unwilling or unable to do so, surrendering suspects to The Hague for prosecution.
The legal issues involved in such high-profile prosecutions are of course riddled with political controversies. Although the obligations imposed by law on our institutions are clear and weighty, how those obligations are carried out inevitably involves policy choices. The effects of these choices will provide opportunities for principled leadership and involve political costs. Looking back, two broad observations can be drawn from these developments, and should inform the policy choices of our government.
First, what emerged clearly from the Al- Bashir indictment is the need for a coherent and co-ordinated policy on international criminal justice. The nature of these matters being such that numerous state departments are involved, co-ordination across government is essential. Nothing is to be gained from the equivocation that characterised our handling of the AU resolution and Al-Bashir’s indictment by the ICC. After some firm nudging, by South African civil society in particular, the government ultimately did the right thing by honouring our treaty obligations and acknowledging the legal effect they have in the domestic sphere. However, by the time we corrected our position we had already missed an opportunity to show leadership (Botswana had long since been heralded, correctly, as Africa’s principled voice on the issue); we had needlessly suffered the political cost of being portrayed as siding with Al-Bashir; and of placing old-style Organisation of African Unity solidarity politics above African victims’ rights.
Second, and related to this, is the danger of aiming for short-term diplomatic solutions in response to such developments. SA lies at the centre of too many political dichotomies, and is pulled in too many directions, to properly anticipate the long-term effect of decisions based on immediate political cost. The Al- Bashir matter has seen SA originally siding not only with African states, but also with various Arab states that had condemned the ICC indictment. Its revised position — affirming its legal duty to arrest Al-Bashir if he visited here — will not have sat well with the League of Arab States. The Gaza docket will sit better within Arab capitals, but any action thereon by the South African government is likely to draw the ire of Israel. Given these conflicting allegiances, and the embarrassing correction the government was forced to make in respect of the Al-Bashir arrest warrant, SA could do worse than err on the side of principle and open commitment to its legal obligations.
The Al-Bashir arrest warrant and the Gaza docket application make one thing abundantly clear. Africa is where international criminal justice — a relatively new phenomenon — is taking stride. And SA, with its progressive ICC Act and leading role on the continent, is at the cutting edge of these developments. It is thus important for the government to co-ordinate and streamline its policies around international criminal justice. And it is imperative that the rule of law guide its response to developments in the field: whether it be a call from the ICC to arrest the Arab leader of an African nation, or an application for the investigation of Israeli war crimes in Gaza.
– Gevers is a lecturer at the University of KwaZulu-Natal’s law faculty. He has just spent a year abroad studying for a masters in human rights at the London School of Economics and Political Science on a Chevening Scholarship awarded by the British Council.
