A lot of abuse has been heaped on 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 still considering a complaint from a South African NGO requesting that Al-Bashir should 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 in Cape Town.
The London newspaper, The Guardian, for instance, published an emotive article on its website under the headline “South Africa’s failure to arrest Omar Al-Bashir ‘is [a] betrayal of Mandela’s ideals’.
And 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.” Little did it know that South Africa would soon define “its duty” in a far different manner.
The simple truth is that in the Al-Bashir case, South Africa was caught between two separate and conflicting 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 Vienna 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 , say, in the Sudanese Ambassador’s house?
There is more: “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 only question that arises, 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”, for most countries designate their heads of state as their ”Number One Diplomat” and apply for diplomatic visas for them – if necessary – (since there can be mutual “waivers:” of visas between states when their heads of state need to travel to each other’s territory.)
Additionally, in Al-Bashir’s case, the very venue for the AU Conference, where he would presumably have spent most of his time in South Africa, would also have been covered by diplomatic immunity in advance, through the provisions of the treaty signed between South Africa and the African Union, before South Africa became a member.
Now, whatever the obligations South Africa owed to the ICC – under the Rome Treaty that set up the ICC and which South Africa had solemnly ratified – it would have had to weigh 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 own 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, if not ultra vires; indeed, an oft-quoted example of a conflict between a judicial decision and a political imperative occurred in the US in 1832, when President Andrew Jackson, commenting on the US Supreme Court decision on The Indian Removal Act (concerning the removal of the Cherokee “Red Indians” from their lands in the state of Georgia) is reputed [apparently in error!] to have stated: “Well, Chief Justice John Marshall has made his decision. Now, let him enforce it!” (By the way, one historical essay claims that Jackson was misquoted and that “Although [Andrew] Jackson is widely quoted as saying, “John Marshall has made his decision; now let him enforce it,” his actual words to Brigadier General John Coffee were: “The decision of the Supreme Court has fell still born; and they find that it cannot coerce Georgia to yield to its mandate.”) Much the same thing, though, isn’t it, despite the difference in words?
Anyway, it is undoubtedly true that of the judiciary makes judgements that are patently unenforceable, it merely exposes itself to ridicule and contempt. That is why some courts sometimes take what is called “judicial notice” of facts that are not strictly before them, when making judgements over certain issues of “public import”.
I come now to the issue of “Mandela’s ideals”: these ideals are invoked by many people who do not bother to find out what they really are, but rather subsume their own perceptions of what they might have liked Mandela to think, for what he actually thought! The thing is that Mandela’s ideals were essentially “ring-fenced” with common sense and realpolitik. Mandela would not have handed Omar Bashir over to the ICC against the political interests of South Africa and the African Union, just to be popular with the ICC, or its Western patrons. He was chided, on an American TV programme, the Ted Koppel Report, telecast on 21 June 1990, by a member of the Israeli lobby, for being “friendly” towards the Palestinian Liberation Organisation, then led by Yassir Arafat.
His firm answer, in his usual, crisply deliberate manner, was that the PLO is a friend of the ANC. The ANC knew who its friends were, during its long and bitter struggle against apartheid. And the ANC was not now going to allow anyone else to CHOOSE its friends for it!” He was wildly cheered by the largely African-American audience when he said this. Mr Mandela adopted the same attitude towards Cuba, despite pressure put on him by the Americans.
But 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 mutually enforceable diplomatic protocols their country had voluntarily 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 Sudan would have taken the South African diplomats as hostages. Which South African citizen – including the superficial South African judge and his supporters – 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 enormously droll that US former President George W Bush, whose acts of inhumanity during the Iraq invasion still shock the world, and Tony Blair of Britain, who supported Bush with British troops and Air Force, as well as Benjamin Netanyahu of Israel, still strut around the world as free and sometimes even honoured men, though they have all committed woeful crimes against hundreds of thousands, if not millions of Iraqis, the population of Gaza, and other Arab peoples? 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 people who have used their enormous power to kill so many defenceless people, not being hauled before the ICC? It might be said that ICC warrants against them cannot be enforced because their nations are so powerful. Fine. So might is right in international relations? Even if ti cannot arrest them, has the ICC even ATTEMPTED to issue warrants against them? Does the mere fact that they each come from a mighty country exculpate them from crimes against [weak] humanity? Isn’t justice supposed to be blind, punishing the weak and the powerful alike equally, if they go against it?
In the light of all these considerations, it would have been farcical for the South African Government to have ignored the glaring contradictions that exist between ICC warrants and international diplomatic protocols and handed over Omar Al-Bashir. Indeed, it would have been a disgrace not to the ideals of Nelson Mandela but to the analytical ability of the South African Government, and thereby, a slur on the memory of 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 oppressive 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 mote in everyone else’s eye, but not the beam in their own.
Finally, is it not 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? Hasn’t it conveniently forgotten 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” in that instance in Great Britain, the self-styled mother of ”The Rule of Law”?