The Omar al-Bashir fan club

Andrew Donaldson on the ANC's shabby and nonsensical decision to withdraw from the ICC

IT is no doubt wrong to judge or think ill of a man merely on the basis of his shifty demeanour, but let’s not kid ourselves – Sudan’s President Omar al-Bashir certainly has all the makings of someone who is able to assist the police with their inquiries.

The ruling party, however, believes otherwise and, to this end, Obed Bapela, who chairs its international relations sub-committee, announced last weekend that the ANC wants South Africa to withdraw from the Rome Statute, which it adopted along with 119 other countries in July 1998, and the International Criminal Court, which has issued two warrants of arrest against Bashir. “The principles,” Bapela said, “that led us to be members [of the ICC] remain valid and relevant . . . however, the ICC has lost its direction and is no longer pursuing that principle.” 

This shabby nonsense came as no great surprise. The party had already signaled its displeasure with the court back in June when the government reneged on its obligations to arrest Bashir, who was in Johannesburg for an African Union summit. In a statement released just hours before Bashir was weaseled out the country, the ANC plainly suggested the ICC was biased against Africans, and that it was “no longer useful for the purposes for which it was intended”.

The accusation of bias is, frankly, is rather wobbly given that the court is presently investigating what it terms “situations” in Afghanistan, Palestine, Honduras, the Ukraine, Iraq, Colombia and Georgia. 

However, should this notion of bias persist – and there is no reason to believe the Bashir fan club was now going to change its position in this regard – it could readily be countered that the ICC has indeed shown tremendous bias in the execution of its duties, but in favour of many, many other Africans.

Consider that the court has to date indicted 39 people – all African – on counts of genocide, war crimes and crimes against humanity committed in the Democratic Republic of the Congo, Uganda, the Central African Republic, Kenya, Côte d'Ivoire, Libya, Mali and Sudan.

How many Africans were murdered here? How many women and children were raped? How many millions were displaced, their lives disrupted and thrown in turmoil? Do these Africans not deserve justice?

The ANC appear to believe not. For all their whining to the contrary, that they are “not lowering” the flag of human rights, but “will continuously hold it high”, their disgusting behaviour seeks to effectively silence the victims of the worst atrocities committed on the continent in the post-colonial era.

Many fear that South Africa’s withdrawal from the ICC would result in a mass exodus of other African countries, and thereby jeopardise the already fragile court’s ability to carry out its functions. 

The ICC’s history is worth recalling. Although the establishment of an international tribunal to try political leaders accused of international crimes was first proposed in 1919 after the First World War, it was only after the Second World War that two such tribunals were established on an ad hoc basis to prosecute German and Japanese leaders. 

In 1948, after the Nuremberg and Tokyo trials, the UN General Assembly recognised the need for a permanent international court to deal with war crimes, but the Cold War put paid to the establishment of such a body until 1989, when the International Law Commission once more began work on a draft statute for such a court.

Two further ad hoc tribunals set up by the UN Security Council in the early 1990s to deal with large-scale atrocities in the Yugoslav wars and Rwanda further highlighted the need for such a court.

Finally, the Rome Statute of the International Criminal Court was adopted in 1998 by a vote of 120 to seven, with 21 abstentions. Those countries who voted against the treaty – China, Iraq, Israel, Libya, Qatar, the United States and Yemen – were at the time among the world’s worst human rights abusers.

South Africa now taking the unprecedented step of being the first signatory to leave the ICC did not absolve it of its responsibilities to the court. This is according to Wayne Ncube of Layers for Human Rights, who told News24 that, in effect, Pretoria still had a duty to to co-operate with the court.

Besides, Ncube added, withdrawal from the ICC was a lengthy process – the matter had to go to parliament first and only then could Pretoria give a year’s written notice to the UN secretary general of its intention to withdraw.

Bashir, meanwhile, has been invited back here for some Afro-Chinese mutual love-up in December. Should he arrive we’re still obliged to arrest him. He should bear this in mind when he packs his toothbrush.

This article first appeared in the Weekend Argus.