African Union, ICC and the Omar Al-Bashir Incident of the Flight in the Day Time

By Takura Zhangazha*

Before the end of the 25^th Ordinary summit of the African Union (AU) had officially occurred in Johannesburg, South Africa, a serving African president had fled from an African country.  Omar Al Bashir, President of Sudan, wanted by the International Criminal Court (ICC) for war crimes and crimes against humanity allegedly committed in the Darfur region of his country could not get the protection of the AU or the host government  from the South African judicial system. The Southern African Litigation Center had decided to seek his arrest in lieu of the fact that South Africa is signatory to the Rome Statute and thus has legal obligations to enforce judgments of the ICC.

In an urgent hearing, South Africa’s High Court found that President Zuma’s government was obliged to arrest, with the intention of transferring President Bashir to the Hague to face trial. By the time a final judgment on the matter was delivered, the accused was halfway on his journey back home.

Now there are many ways to look at this.  The easiest is to follow the lead of the mainstream global (Western) media and simply argue it’s the case of an African ‘despot’ fleeing the clutches of global (also read as Western) justice.  This point is made even more salient by the general derogatory attitude toward African leaders and their ‘democratic’ credentials or lack of them, especially when they have the much vilified Zimbabwean President, Robert Mugabe at the helm of the AU.  

There is however no doubt that Al-Bashir did escape arrest or the law, but one cannot be sure about escaping justice until every other state/government leader who has a semblance of an accusation of human rights violations is also seen to be equal before the ICC. Ditto the United States, the United Kingdom, the European Union, Russia, China, Australia and India (among others).

The second way is to simply wear the cloak of anti-imperialism and act as though Africa or even the Global South are victims of world history.  This would entail forgetting that the ICC is not a mandatory international court even though it has a great bearing on international relations.  South Africa, in this case the host country, voluntarily signed up to the Rome Statute, and its courts, whatever one’s opinions, are interpreting and enforcing the law.  

The same can be said of other African countries that signed the establishing conventions of the ICC (and there are many) as and when such cases arise.  And indeed they have arisen, with persons such as Laurent Gbagbo, Bosco Ntanganda, being referred to the ICC by African governments. So there is voluntary African participation in the ICC which cannot be wished away for its instrumental political reality. 

While there has rarely been a uniform continental response to international events or institutions by African countries or the AU, it is true that in some cases the ICC has served the direct interests of African governments (and in some cases people). Selective use of the ICC is actually much higher than its selective and outright rejection to the extent that the anti-imperialist tag won’t wash.

The third perception is perhaps the more realistic one that is in tandem with a 'Mbekite' view of Africa’s placement in world politics.  Predicated on the fact that Africans must find African solutions to African problems, this view would seek to solve the Sudan crisis and issues of crimes against humanity initially through African led mediation, an African court of Justice and with a long term view of not only compensating victims but rehabilitating the perpetrator.  All in attempted aide of democratic posterity for the continent. 

I am sympathetic to this view because it is grounded in both the idealism that brought African liberation but also grounded in a realistic assessments of global politics.  It’s primary challenges are however not only the slow pace of institutional reform of the AU but also the general ineptitude of political leadership of member states and even the continent. This is because most of the problems, in the case of al Bashir, the civil war in Darfur, are caused by an inability of African presidents/governments to understand not only local and historical dimensions but also international aspects to conflicts in pursuit of peaceful solutions.

In the final analysis, the urgent issues that need to be addressed are not limited to the lack of universality of the ICC, especially where and when it concerns members of the UN Security Council, but a tragic lack of domestic and continental rule of law institutions in a majority of AU member states or on the continent. While the AU has the African Court on Human and People's Rights, its weakenesses and lack of continental confidence remain tremendous challenges.  

That we have to seek recourse to the ICC points to a deficit of such institutions of justice on the continent. Moreover, it also points to the fact that we are still burdened by the fact that we cannot prevent such atrocities, even if alleged, from occurring. Where we were to do that, as Africans, we will not have to send our alleged war criminals across oceans to face justice at the instigation or support of those that will probably never have to answer for their own alleged crimes against humanity.  

*Takura Zhangazha writes here in his personal capacity (takura-zhangazha.blogspot.com)