A court in the Republic of South Africa ordered the detention of the President of the Sudan against whom a warrant of arrest has been issued by the International Criminal Court at The Hague. The order should have been enforced by the executive branch of the Government of South Africa. It was not. Omar Hassan el Bashir was "permitted" to depart South Africa for the Sudan. The Republic of South Africa has ratified the Rome Statute and domesticated it in the law of South Africa. The Sudan is not even a signatory to the Rome Statute.
Jacob Zuma's government is not the most coherent, but on this it follows a long history of governments playing realpolitik in the national interest. Look at the relationship between the United States and the Kingdom of Saudi Arabia. The Keeper of the Two Holy Places is a breeding ground for the most radical and virulent strain of Islam. It's geopolitical interests have seen it export that strain to the most violent part of the world today: Afghanistan. It's nationals are responsible for spreading violent jihad across the globe. Yet the USA has not and probably will not sever ties with the Kingdom.
The government of Margaret Thatcher supported the apartheid regime of South Africa. So did the Jewish State of Israel. France has coddled Francophone Africa dictators for decades. The Republic of South Africa, regardless of what its courts ordered, was well within its rights to consider the implications of detaining the President of the Sudan and delivering him to the Hague to stand trial for crimes committed in the Sudan.
Mr el Bashir is an odious man. He has blood on his hands. But the ICC indictment against him confirms the hypocrisy of the international criminal law regime. He is not the only head of state who has committed heinous crimes. Between 2003 and 2015 it is estimated that at least 600,000 Iraqi civilians have died because of the post-9/11 interventions of the Coalition of the Willing led by the United States and the United Kingdom. The violence has spilled over to Syria where it is estimated that between 2012 and 2015 at least 250,000 civilians have died. The presidents of the United States and the Prime Ministers of the United Kingdom, responsible for greater crimes against humanity than the President of the Sudan have not and will not be indicted at the ICC.
The Republic of South Africa has troops in the Sudan, as part of the African Union Mission in Darfur. If Mr el Bashir had been detained by the Government of South Africa it is likely that his government would have attempted to take hostage the South African troops until Mr el Bashir was set free. Had that happened, the Government of South Africa would have had to choose between sacrificing its soldiers or attempting to rescue them. War would have been a distinct possibility. If war between the Sudan and South Africa broke out, it is also possible it would have spread to Chad, Egypt, South Sudan, Ethiopia and Kenya.
If the Western powers who are so interested in Mr el Bashir's trial at the Hague are determined to see the matter through, then let them stop pussy-footing around with his arrest and detention. The United States invaded Panama in 1989 to "arrest" Manuel Noriega. The United Kingdom fought a war with Argentina to keep the Falklands. The North Atlantic Treaty Organisation gave air support to armed rebels who toppled Muammar Gaddafi. They should get their hands bloody and bring their war to the Sudan. But they should remember this Americanism: You break it, you buy it.
The question of whether or not the refusal or failure by the Government of South Africa to detain Mr el Bashir was a violation of the Constitution of Suth Africa is an extreme exercise in navel-gazing. The order was made to compel the executive to arrest Mr el Bashir. The actual enforcement of that order is not within the power of the court, but the executive. This order was unenforceable; in diplomacy, the law is just one other factor to be taken into account when acting. Mr el Bashir's detention would have been in conflict with the decisions of the African Union whose summit was being held in South Africa and why Mr el Bashir was there to begin with.
This conflict would, therefore, not have been restricted to a South Africa/Sudan spat; it would have sucked in the other fifty three member states, demanding that they either pick sides or remain neutral. It would not just have had diplomatic consequences but economic ones too. Trade wars would either have been started or escalated. Jacob Zuma's government was right to play cat-and-mouse with the courts over Mr el Bashir's detention. Now the courts have to do the right thing and slap the wrists of the officials concerned.
The question of whether or not the refusal or failure by the Government of South Africa to detain Mr el Bashir was a violation of the Constitution of Suth Africa is an extreme exercise in navel-gazing. The order was made to compel the executive to arrest Mr el Bashir. The actual enforcement of that order is not within the power of the court, but the executive. This order was unenforceable; in diplomacy, the law is just one other factor to be taken into account when acting. Mr el Bashir's detention would have been in conflict with the decisions of the African Union whose summit was being held in South Africa and why Mr el Bashir was there to begin with.
This conflict would, therefore, not have been restricted to a South Africa/Sudan spat; it would have sucked in the other fifty three member states, demanding that they either pick sides or remain neutral. It would not just have had diplomatic consequences but economic ones too. Trade wars would either have been started or escalated. Jacob Zuma's government was right to play cat-and-mouse with the courts over Mr el Bashir's detention. Now the courts have to do the right thing and slap the wrists of the officials concerned.
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