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Al-Bashir, the ICC and "coconut" NGOs.

Did South Africa really flout both its local and international laws when it allowed Sudanese President Omar al-Bashir (pictured right) entry into the country for the AU Summit, by defying an NGO-led warrant for his arrest and indictment to the International Criminal Court (ICC) "for genocide and crimes against humanity"? Dr David Hoile begs to differ.

It is said that most, if not all, plans of attack go wrong the moment the first shot is fired. This was not the case at Sandton Convention Centre in Johannesburg last month, where two veteran African freedom-fighter leaders lured a European punitive column into a carefully prepared ambush and can be said to have severely--if not fatally--wounded their prey.

The grizzled fighters were President Robert Mugabe of Zimbabwe and South Africa's President Jacob Zuma. The unsuspecting target was the European-funded and directed International Criminal Court (ICC), and the kill zone was the Heads of State and Government Summit of the African Union held from 14-15 June 2015. The first shot was fired by the Southern African Litigation Centre (SALC) --referred to by many at the summit as a coconut NGO, brown on the outside but white inside, one of the many Western-funded and Western-controlled NGOs masquerading as "African civil society" on the continent--when it went to court in South Africa to seek the enforcement of two ICC arrest warrants against President Omar al-Bashir, who had flown in to attend the summit.

It was, however, a shot that was not just anticipated but clearly planned for by the African forces ranged against the ICC. Sandton was a battleground of their choosing with regard to the ICC.

Sold false goods

The African Union had previously made its position regarding the ICC very clear. While Africa had enthusiastically embraced the concept of a universal court that would pursue global justice without fear or favour, its states forming the largest regional bloc within the new court, the continent had come to realise it had been sold a false bill of goods. Despite having received more than 9,000 complaints of war crimes, and crimes against humanity within 139 countries, the ICC had avoided dealing with any alleged western or European war crimes, preferring instead to focus exclusively on Africa. For many Africans the spectre of a court based in The Hague and largely funded by Africa's five former European colonial powers resembled recolonisation y spurious legal diktat. In 2013, at an AU summit in Addis Ababa, the Ethiopian Prime Minister, Hailemariam Desalegn, accused the court of a "race hunt". Its racism aside, the ICC had been caught up in systematic procedural irregularities. Several AU heads of state summits had unanimously resolved that African states were not to help, assist or cooperate with the ICC.

The SALC managed to obtain an interim order that President al-Bashir should not leave South Africa until the arrest warrant issue had been tested in a full court hearing. That hearing was set for the afternoon of Monday 15 June. The reality is that al-Bashir's itinerary had already been set in stone. Al-Bashir arrived as scheduled on the evening of Saturday 13 June for the summit and attended the opening and its closed sessions, and then left on schedule just before midday on Monday 15 June, flying out of Pretoria's Waterkloof Air Force Base. Tellingly, several other heads of state had already left.

The South African government very pointedly ignored the court order.

President al-Bashir had previously visited several African ICC member states, which had also ignored ICC demands for his arrest. South Africa is a regional power within Africa with diplomatic influence well beyond the continent; as such, the South African government's decision to ignore the vehement calls to arrest the Sudanese leader came as a heavy body blow to the ICC.

The ICC had previously seen South Africa as an ally, with ICC prosecutor Fatou Bensouda having been quoted in the past, saying: "South Africa was one of the strongest supporters of the court and a leading founding member."

But although it was obvious among those present at the Sandton AU summit that the al-Bashir ICC "ambush" was carefully planned, the position of the AU was also made as clear as clean glass. During the closing press conference the AU Commission Chairwoman, Dr Nkosazana Dlamini-Zuma, was categorical, stating: "There is nothing new about President al-Bashir attending AU summits. Sudan is a member of the AU and has always attended AU summits... the AU does things according to its own rules, not according to the rules of the ICC."

Unbeknown perhaps to the SALC and ICC supporters, the host country South Africa had done its homework and it was perfectly clear. They had ensured al-Bashir's safe trip and passage into the country for the summit. President Mugabe has gone so far as to place on record that President Zuma assured his colleagues prior to the summit that al-Bashir would not be arrested. Ahead of the summit, the South African government had gazetted that all participants at the AU meeting receive immunity in accordance with section 5(3) of the Diplomatic Immunities and Privileges Act of2001, which gave the government the power to gazette any arrangement around diplomatic immunity to delegates to meetings of international bodies in South Africa.

Fabrications and double-standards

But it can safely be said that hell hath no fury like a scorned, cappuccino-drinking Caucasian elite--whether it is in The Hague, Brussels or Sandton. This was initially reflected in a wave of poor journalism with regard to the issue of President al-Bashir's visit to and departure from South Africa, with some initially reporting that President al-Bashir had "fled" the country on Sunday, immediately he was made aware of the legal case and intent to arrest him. Some media went to huge extents of distortion in an attempt to change the narrative and the truth on the ground, claiming that "poor little South Africa" had had to "release" al-Bashir because Sudanese army units were holding South African peace-keepers hostage in Darfur completely fabricated claims, and there were many more.

For all the attempts to change the narrative, it is very clear that President Zumas decision had grassroots support. Talk-radio programmes buzzed with outrage that a flawed racist court was trying to dictate to South Africa.

Once again, the issue had brought the racist double-standards and competence of the ICC centre-stage within Africa's debate about the "court". In South Africa, the country's ruling African National Congress party has declared that the ICC was "no longer useful to the purposes for which it was intended" and that either every UN member state should join or South Africa would leave.

The ICC has also been left reeling from another body blow --this time from long-time ICC advocate, former Archbishop Desmond Tutu. The Tutu Foundation implicitly criticised the fact that the ICC was clearly unwilling to address western involvement in war crimes and crimes against humanity, stating that the world "needs a criminal court where all are held equally to account, regardless of their nations' wealth, geographic location or particular history. By refusing to submit to the jurisdiction of the court, some of the most powerful nations in the world have created an environment in which no world leader feels the need to be held to account".

In devastating and unprecedented criticism of the ICC, Tutu went on to conclude that "A court that cannot uphold the principle of all being equal before the law lacks integrity. The reason that the ICC is battling is neither Africa's nor the court's fault; African nations and lawyers played prominent roles in establishing the court, in 2002. The reason the ICC is battling for integrity is because some of the most powerful nations in the world would rather there was no court than one that might one day hold them to account, too."

The international community is faced once again by a simple question. What relevance does the ICC retain in an Africa within which so many countries refuse to recognise its authority? It is a question that can no longer be ignored.

Dr David Hoile is an African scholar and public affairs consultant specialising in African Affairs. He is the author of The International Criminal Court: Europe's Guantanamo Bay? (2010) and Justice Denied--The Reality of the International Criminal Court (2014).
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Title Annotation:Viewpoint: AU SUMMIT; Omar al-Bashir, International Criminal Court and nongovernment organizations
Author:Hoile, David
Publication:New African
Date:Jul 1, 2015
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