The ICC And Intra-African Diplomatic Relations

A lot of abuse has been heaped upon the head of the South African Government for allowing President Omar Al-Bashir of Sudan to leave South Africa on 15 June 2015, whilst a South African court was considering a complaint from a South African NGO requesting that Al-Bashir be arrested in execution of a warrant issued against him by the International Criminal Court (ICC). Al-Bashir had been attending an African Union (AU) Summit on Cape Town.

The London Newspaper, The Guardian, for instance, published an emotive article on its website under headline 'South Africa's failure to arrest Omar Al-Bashir ‘is betrayal of Mandela's ideals’.

In an editorial published while Al-Bashir was still in South Africa, The Guardian stated: 'Mr Bashir is a test case for the ICC. Its mission needs to be internationally supported. Today, the focus is on South Africa, which did its duty by blocking Mr Bashir's departure.'

But in the Al-Bashir case, South Africa was caught between two separate arms of international law: (1) the obligation to execute a warrant issued by the ICC and (2) the obligation to respect the provisions of the protocols governing mutual diplomatic relations between South Africa and Sudan.

Diplomatic relations between countries are governed by the 'Vienna Convention on Diplomatic Relations' signed on 18 April 1961 in Vienna, Austria. According to Wikipedia, 'Throughout the history of sovereign states, diplomats have enjoyed a special status. Their function to negotiate agreements between states demands certain special privileges. An envoy from another nation is traditionally treated as a guest, their communications with their home nation treated as confidential, and their freedom from coercion and subjugation by the host nation treated as essential.'

Article 22 of the Convention provides that 'The premises of a diplomatic mission, such as an embassy, are inviolate and must not be entered by the host country except by permission of the head of the mission. Furthermore, the host country must protect the mission from intrusion or damage. The host country must never search the premises, nor seize its documents or property. Article 30 extends this provision to the private residence of the diplomats.

So how could Bashir have been arrested if he had resided in the Sudanese Ambasssador’s house?

'Article 27: The host country must permit and protect free communication between the diplomats of the mission and their home country. A diplomatic bag must never be opened even on suspicion of abuse. A diplomatic courier must never be arrested or detained.

'Article 29: Diplomats must not be liable to any form of arrest or detention.'

The question, then, is, was Omar Al-Bashir a 'diplomat' when he was on South African soil and therefore protected by the immunities accorded to diplomats by Article 29 of the Vienna Convention of 1961?The answer is yes: most countries designate their heads of state as their 'Number One Diplomat' and apply for diplomatic visas for them.

Additionally, in Al-Bashir’s case, the venue for the AU Conference, where he would presumably have spent most his time in South Africa, would also have been covered by diplomatic immunity, in the treaty signed between South Africa and the African union before it became a member.

Now, whatever the obligations South Africa owed to the ICC - having ratified the Rome Treaty which set up the ICC - it would have had to weight those obligations against those of the Vienna Convention. That would be a political decision which only the sovereign South African government would be able to take. Yes, the South African Government must bow to its judiciary, in consonance with the Constitution of the country. But in doing so, it must not

ignore the precept of equity in law. For instance: should the South African Government obey a court injunction that would send the country to war, against the wishes of the executive and the legislature?

Such an injunction would clearly be considered unenforceable; indeed, one US President is reputed to have stated, when confronted with a Supreme Court decision he did not like: 'Well, the Chief Justice has made his ruling. Now, let him enforce it!' If the judiciary makes rulings that are patently unenforceable, it merely exposes itself to ridicule and contempt.

Now, on the issue of “Mandela’s ideals”: these are invoked by many people who do not bother to find out what those ideals were. They were ring-fenced with common sense and real politik. Mandela would not have handed Omar Bashir over to the ICC in order to be popular with the ICC, or its Western patrons. He was once chided, on an American TV programme, over his friendly relations with the Palestinian Liberation Organisation, then led by Yassir Arafat.

His answer was: “The PLO is a friend of the ANC. We know who our friends were, during our long and bitter struggle against apartheid, and we are not now going to allow anyone else to CHOOSE our friends for us!” He was wildly cheered by the American audience when he said this.

Mandela adopted the same attitude towards Cuba, despite pressure put on him by the Americans.

All that aside, it should be noted that there were other practical reasons why the South African judicial authorities could not, in defiance of the diplomatic protocols their country had entered into in accordance with the Vienna Convention, arrest Al-Bashir on South African soil. Sudan would have taken immediate retaliatory action by refusing to accord South African diplomats in Sudan any further diplomatic recognition, which means, in practice, that it would have and taken them as hostages. Which South African citizen - including the silly judge - would have liked that to happen, if his or her relatives were serving as diplomats in Sudan, given that country’s reputation for brutality?

There is also the issue of 'moral equivalence', which cannot be easily tossed aside. Of course, 'wthat-aboutery' is to be generally deplored, in this case, it ought to be asked why the ICC has been so 'choosy' in its indictments. To be sure, Omar Bashir is a wicked, brutal dictator, whose mistaken sense of an “Arab nationalism” that rides roughshod over the cultural and historical concerns of Black Sudanese people, has led him to commit murder of a most horrible kind against hundreds of thousands of Blacks in Sudan, especially in Southern Sudan and in Darfur. 'Jinjaweed' action alone could earn him a death sentence. Yes, he ought to be punished, but not through the machinations of a single African state against the conventions and wishes of its own continental organisation, the African Union.

And isn’t it droll that George W Bush, Tony Blair and Benjamin Netanyahu strut about the world and yet have all committed woeful crimes against hundreds of thousands, if not millions of Iraqis, the population of Gaza, and other Arabs? Don’t Obama’s drones continue to kill Arabs and even some Americans — without the victims ever having been tried or convicted, as demanded by the US Constitution? Which death is not a death? Why are these killers not being hauled before the ICC? It might be said that ICC warrants against them cannot be enforced. Fine. But has the ICC even ATTEMPTED to issue warrants against them? And does the fact that they come from a mighty country exculpate them from crimes against humanity? Isn’t justice supposed to be blind, punishing the weak and the powerful alike, if they go against it?

In the light of all this, it would have been farcical for the South African Government to have ignored this glaring contradictions that exist between ICC warrants and international diplomatic protocols; indeed, it would have been a disgrace to the analytical abilities of the South African Government, and thereby, a slur on the memory of Nelson Mandela and his very intelligent comrades, to whom a correct analysis of political events was crucial, as they secretly communicated with one another, during their long terms of imprisonment on Robben Island. They would have cut through the hypocritical verbiage and gone straight to the core issues, without fear of anyone, especially the murderous Western countries who can see the mite in everyone else’s eyes but not the mote in their own.

Finally, it is rich that a newspaper published in Britain should be chiding the South African Government for refusing to bow to its own judiciary in this matter? Isn’t it conveniently forget that when the Judicial Committee of the British House of Lords (now the British Supreme Court) decided in October 1999 that General Augosto Pinochet should be extradited to Spain to face trial there for his horrendous crimes, he was allowed to go free through a POLITICAL DECISION taken by that hypocritical British Home Secretary of the time called Jack Straw? Where was judicial 'autonomy' on that instance?

By CAMERON DUODU