Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP at the debate in terms of Rule 103: The implications of the attendance and departure of President Omar al-Bashir from the African Union Summit in South Africa, National Assembly
Madam Speaker
Honourable Members
It’s quite amazing that every speaker from the side of the opposition now seems to be an expert in international law.
As previous ANC speakers have said an investigation is being conducted into the circumstances of President Bashir’s departure and an affidavit providing the detail must be submitted to court by Thursday. I am therefore not going to comment on any of the allegations made here or in the media on the circumstances of President Bashir’s departure.
In discussing this matter we need to take into consideration the importance to South Africa of fulfilling our obligations to the International Criminal Court, but also the importance to us of our relations with states on the continent. We recognise our international obligations, but at the same time we have to be mindful of our position and interests in the region and the continent.
South Africa was asked to host the AU Summit that was held a week ago. This summit is attended by the Heads of State or Government of all AU member states. This includes Sudan.
We believed that, in spite of the ICC arrest warrant, President Bashir had immunity to attend an international summit as a Head of State.
Our government’s legal argument was along these very lines, namely that President Al Bashir, as a sitting Head of State, has diplomatic immunity in terms of the Diplomatic Immunities and Privileges Act, 2001 (Act 37 of 2001). He was attending the AU Summit, which took in our country.
In general, State parties are obliged to comply with a request by the Court for surrender or assistance if a person the subject of an arrest warrant is found on their territory. Article 27 of the Rome Statute of the ICC provides that the Statute applies equally to all persons without distinction based on their official capacity.
However, article 98(1) provides that the Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity.
One could thus argue that the combined effect of Article 27 and Article 98 is that a State Party may not claim immunity for its own officials, but it must respect the immunity of the officials of a non-State Party.
We do not yet have the High Court’s reasons for their order, as these are only being handed down tomorrow. One is therefore not in a position, here today, to discuss the legal arguments in great detail. It must also be added another court could have come to a different decision and that the option of an appeal is one we will consider. However, it would be premature and speculative to even open such a discussion.
But let’s look at other international law cases involving immunity - cases which support the argument that sitting heads of state have immunity.
In the Pinochet cases the House of Lords in Britain accepted that serving Heads of State retain absolute immunities – so-called rationae personae, that is, immunity on account of their official status - irrespective of the nature of the crime alleged, unless waived by the sending State.
Their Lordships denied immunity to Pinochet in his capacity as a former head of state. However, they made it clear that if he had still been an acting head of state, this immunity in international law would have continued to subsist. For instance, Lord Nicholls in the first Pinochet case held that '...there can be no doubt that if Senator Pinochet had still been the head of the Chilean state, he would have been entitled to immunity.’
Lord Millett in the third Pinochet case said that 'Senator Pinochet is not a serving head of state. If he were, he could not be extradited. It would be an intolerable affront to the Republic of Chile to arrest him or detain him.’
In the decision of Democratic Republic of Congo v Belgium the International Court of Justice reaffirmed this point.
With regard to the provisions precluding immunity found in the constitutive instruments of a myriad of international criminal tribunals (the most recent being the Rome Statute of the ICC), the Court expressly held that this exception to customary international law was not applicable to national courts. This case law suggests that the diplomatic or head of state immunity of an accused prevents national courts, regardless of what their domestic legislation might insist, from dealing with allegations of international crimes unless that immunity has been waived.
It is interesting to note that Nigeria, when President Al Bashir visited Nigeria in July 2013, also did not arrest him and the ICC subsequently absolved Nigeria of liability for the failure of its security forces to arrest, as the Pre-Trial Chamber of the ICC ruled that Nigeria has justifiable reasons for its failure to arrest President Al Bashir.
Nigeria submitted that it did not invite President Al-Bashir to undertake a visit to Nigeria. Nigeria argued that the Sudanese President appeared in Nigeria to attend the special Summit of the AU on HIV/AIDS, Tuberculosis and Malaria which took place in Abuja.
South Africa, correctly, had been a vocal proponent of the establishment of the International Criminal Court. We believed, as we still do, that an independent and objective instrument was needed to bring to an end the heinous crimes against humanity and the violation of human rights which were then very prevalent on the Continent and in the world as a whole.
We believed, as we still do, that those who committed such crimes must be prosecuted and punished by an impartial body empowered by international cooperation to defend the universal values of justice. The matter relating to the President al-Bashir therefore is of major concern and we view the allegations levelled against him in a serious light.
It is our view, however, that the ICC is not the court we signed up for. It has diverted from its mandate and allowed itself to be influenced by powerful non-member states. We signed up for a court that was going to hold human beings accountable for their war crimes - regardless of where they were from. We perceive it as tending to act as a proxy instrument for these states, who see no need to subject themselves to its discipline, to persecute African leaders and effect regime change on the continent.
It is being used as a court against Africa, deliberately oblivious to the fact that Africa countries themselves were vocal in their support for the necessity of such a mechanism, with for example, Senegal being the first country to ratify the Rome Statute.
So, let’s look at the ICC – 36 People have been indicted by the ICC since 2005. All of them are from Africa. The record of these cases is not good with 2 persons found guilty and charges against 8 being dismissed or withdrawn or found not guilty.
Responding to criticism that its focus is too narrow, the ICC has since launched preliminary examinations in a number of situations including Afghanistan, Georgia, Guinea, Colombia, Honduras, and Korea.
And even these matters are not without controversy, as some argue that the “non-African” cases are going nowhere – for example, the Georgia investigation started in 2008, and the Afghanistan investigation in 2007 and what results have they shown, if any?
The court’s jurisdiction is affected by the non-participation or non-cooperation of many countries, most notably the United States which dropped out in May 2002, after initially signing up at the last minute in December 2000. The US government has consistently opposed an international court that could hold US military and political leaders to a uniform global standard of justice
In addition, the US has asked many countries to agree not to surrender or transfer US nationals to the ICC in order to gain immunity for its citizens from the Court and the US and others have raised concerns that the ICC will undermine their sovereignty.
Washington began to negotiate bilateral agreements with other countries, insuring immunity of US nationals from prosecution by the Court. As leverage, Washington threatened termination of economic aid, withdrawal of military assistance, and other measures.
Furthermore, both the US and Israel objected when Palestine joined the ICC.
When Palestinian leaders applied to join the ICC, Israeli Prime Minister Benjamin Netanyahu said they had chosen "a path of confrontation" and that Israel would "not sit idly by". The US state department said it does not believe that Palestine is a sovereign state and therefore it should not qualify to join. Washington is the second biggest donor to the Palestinian Authority after the European Union, giving $400m (£265m) each year. Under US law, this support may be cut if the Palestinians press claims against Israel at the ICC.
It must also be noted that three out of four of our BRICS partners - China, Russia and India - are not an ICC signatories.
The fact remains that Africa has been the focus of a court, which is based in Europe. Given this continent’s history of colonialism, the problem is obvious.
The African Union, which represents the continent’s governments, has campaigned heavily contending that no sitting head of state should be prosecuted.
There has been much criticism that the ICC is manipulated by the West. What Africa is saying is that the ICC as it is constituted, should no longer have jurisdiction over Africa. All UN member states need to be signatories for there to be universal justice. Otherwise we should rely on an African Court of Justice and Human Rights.
What concerns Africa the most is the manipulation of the ICC by European powers which have at times sought to neutralise African leaders that exercise independence in the interests of Africans, and who fail to protect Western interests. Let’s take the example of Laurent Gbagbo of Cote D’Ivoire.
Independent Media’s Foreign Editor, Shannon Ebrahim, argues in a recent article that France has a vested interest in ensuring that the leaders of Ivory Coast and other French-speaking African countries toe the line in terms of their economic policies. They must not suggest launching their own currency – because that would be the end of the franc in West Africa.
The greatest threat to this goal was the emergence of Laurent Gbagbo, who won the elections in 2000 and wanted to break away from the former colonial power’s economic stranglehold.
To pressure Gbagbo, France closed the doors of the French banks operating in the country which controlled more than 50 percent of the banking sector, making it impossible for Gbagbo to pay salaries.
The ICC then became the vehicle through which to neutralise Gbagbo. The French justice minister went to the Hague in October 2011 to ask that Gbagbo be transferred to the ICC, where he was held for 15 months without charge.
The ICC, which is primarily funded by France, Germany and the EU, used the 15 months to try to collect evidence against Gbagbo. In June 2013, the decision of the Pre-Trial Chamber was that there was not enough evidence to send Gbagbo to trial.
Instead of releasing him, the ICC set out for another seven months trying to find evidence against him. Gbagbo was denied bail nine times. He is supposed to be tried this year, but the trial date keeps being postponed and now it is November.
The reason, argues Ebrahim, is to keep him remanded until elections have taken place in Ivory Coast in October.
Some, particularly on the DA side of this House, will say that Africa is not willing nor capable of trying persons accused of war crimes. This is not true.
Former president of Chad Hissene Habre, will be tried for crimes against humanity by a Senegalese court next month. The trial is expected to start on the 20th of July.
For the first time in history, a former head of an African state will stand trial in Africa, before an internationalised tribunal, the Extraordinary African Chambers in Senegalese Courts. The EAC is an ad hoc court which is set up by the African Union under the principle of universal jurisdiction.
Madam Speaker,
Without making any comment on the circumstances of President Bashir’s departure what would have happened if South Africa had arrested him? What would the response have been from the African Union? What would our standing have been regarding other countries in the Region? I am aware that some members of the DA wish we were part of the EU and not the AU, but the fact remains we are in Africa not Europe.
If we told US President, George Bush, when he visited South Africa that in terms of the Convention against Torture and our Prevention of Torture Act that he could not leave South Africa until a court decided whether he could be charged, do we think the US would have just stood idly by and waited?
As Prof Steven Friedman said - “How do you prevent a foreign Head of State leaving the country? You’re basically declaring war if you do that.”
I raise these questions in the context of a legal process that has far from been exhausted and that may well ultimately emerge with a different decision.
Some of those who criticised South Africa for not arresting President Bashir have never, not once, raised – with the same intensity – any concern over the situation in Darfur. And, at the same time, gross human violations committed by non-signatory countries go unpunished and often uncriticised.
It is time that the Rome Statute be reviewed to ensure all UN members were subject to the same level of scrutiny and the same justice.
To have two standards of justice is mere hypocrisy.
I thank you.
