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2 May 2009 It’s hard to imagine that the South African government would risk having the inauguration of incoming president, Jacob Zuma overshadowed by having to arrest President Omar Hassan al Bashir of Sudan, and yet that is a scenario South Africa now seems to have put in place.

Because, while the Department of Foreign Affairs has laudably publicly confirmed that they will make no invitations to leaders of Mauritania, Madagascar, Guinea and Guinea-Bissau, in line with the African Union’s principle of non-recognition for unconstitutional changes in government, they have it seems gone ahead and invited Sudan, despite Bashir’s recent indictment by the International Criminal Court (ICC) for war crimes and crimes against humanity. Should Bashir attend the inauguration, and South Africa is confronted with a request from the ICC to secure Bashir’s arrest and surrender to The Hague, it will have no choice but to comply.

Its own law couldn’t be clearer: when South Africa receives such a request from the ICC, the Director-General of the Department of Justice “must immediately on receipt of that request, forward the request and accompanying documents to a magistrate, who must endorse the warrant of arrest for execution in any part of the Republic.”  This law gives effect to South Africa’s international obligations under the Rome Statute that created the ICC – and to which it, along with 29 other African states, is party. It is understood that Sudan’s ambassador has been told by South Africa that Bashir’s attendance could create complications – signaling that South Africa appreciates its legal obligations.

So many may fail to see any problem – if Bashir attends, South Africa will arrest. But it shouldn’t be that South Africa affords to Bashir, with his propensity for dramatic grandstanding and polarizing polemic, the opening to embarrass our nation at a time when we should be showcasing South Africa to the rest of the world. It is widely acknowledged that South Africa, under the leadership of former Justice Minister, Dullah Omar, played a critical role in the development of the Rome Statute and accordingly in the establishment of the ICC.

The coalitions that South Africa helped create at the Rome Conference were crucial in resisting efforts by countries like the United States to see a less robust, less independent court than was the eventual result. The ANC election manifesto proudly, and justifiably, refers to the important role South Africa has played in various multilateral institutions. It should not forget its achievements at Rome. The election manifesto also forthrightly declares that it will “[s]pare no energy in its efforts to find urgent, democratic and lasting solutions to the situation in . . .Sudan”.

Now, no one could sensibly suggest that Bashir’s indictment or even his arrest and conviction will alone secure an urgent, democratic and lasting solution to the problems in Sudan. But ensuring the accountability of those who have perpetrated the most horrific crimes will form an important part – a part the ICC will help play.

In honouring its obligations to the ICC, its own important role in establishing the court, and the commitments made to finding lasting solutions for Sudan, South Africa cannot afford to sow confusion. It cannot speak ambiguously. It cannot say we’re not not inviting Bashir, and then essentially ask the Sudanese to save us from the embarrassing predicament of having to execute our legal obligations against an invited guest. Admittedly, diplomatic relations often are complex and multi-dimensional. But in this instance, at this moment, they’re fairly simple. South Africa can save itself this controversy by taking the line that Bashir is not invited and that he couldn’t be, because his entry into the country would trigger our responsibilities of arrest.

Max du Plessis is associate professor of law, University of KwaZulu-Natal; senior research associate, Institute for Security Studies. Nicole Fritz is the director of the Southern Africa Litigation Centre.


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