Issafrica.org: Will Bashir take a walk on the wild side?

The South African government has invited Sudan’s President Omar al-Bashir to attend the African Union (AU) summit in Sandton early next month. This is despite Bashir being a fugitive from the International Criminal Court (ICC).

South African official sources have confirmed that an invitation has gone out to him, as to all heads of state of AU member countries. But whether or not he accepts the invitation remains the big question.

As a founding member of the ICC, South Africa is obliged to cooperate with the court in bringing to justice those it indicts. So if Bashir comes to South Africa, it would have to arrest him. The ICC Prosecutor indicted Bashir in 2009 and 2010 for war crimes, crimes against humanity and genocide, allegedly committed by forces under his command in Sudan’s western region of Darfur.

In 2009, when Bashir was officially invited to attend President Jacob Zuma’s first inauguration, the Director-General of International Relations and Cooperation Ayanda Ntsaluba was obliged to point out, when asked by a journalist, that South Africa would nevertheless have to arrest Bashir and hand him over the ICC at The Hague if he actually set foot on South African soil. He had to say the same a year later when asked about the blanket invitation to Bashir and all other AU leaders to attend the opening of the FIFA World Cup.

South Africa has treaty and domestic law obligations to cooperate with the ICC

Ntsaluba was clearly not trying to irritate Sudan. He was merely giving an honest answer to an obvious question. But Khartoum’s ambassador was nonetheless infuriated by the constant repetition of Pretoria’s position. Now the same question will arise. To some South African officials it seems the case is different this time, as this is an AU summit that Bashir would be attending, and so he would in effect, be on AU not South African soil.

They compare this with the United States being obliged to allow Cuban President Fidel Castro to visit the United Nations (UN) in New York, even though he was persona non grata in the United States.

But Anton du Plessis, Managing Director of the Institute for Security Studies (ISS) in Pretoria, says the two cases are not comparable. ‘A visit by Bashir to South Africa would not be a political matter, but a judicial one,’ he said, ‘because South Africa has treaty and domestic law obligations to cooperate with the ICC. And a SA court has previously issued a warrant of arrest for Bashir.’

This was because South Africa had domesticated the Rome Statute of the ICC into national law. So we are not just speaking about international treaty obligations: this is also a domestic rule of law obligation, he said. ‘Bashir would be crazy to come to South Africa,’ du Plessis added. He believes that the South African government would not want to jeopardise its standing as a country which respects the rule of law by allowing Bashir in without arresting him.

Bashir might want to make a statement in solidarity with Kenya’s President

Allan Ngari, a researcher at the ISS, believes it is unlikely that Bashir would come to South Africa – more to avoid embarrassment to himself than South Africa – because of the warrants of arrest against him. South Africa would be obliged to enforce these regardless of the status of the AU Summit.

‘There are no derogations permissible by the ICC Statute or any other treaty norm from South Africa’s obligation to arrest him. It might be the case, as it was for President Zuma's inauguration, that a formal invitation is extended to Bashir, but on the sidelines they whisper to him that should he travel to South Africa for the AU Summit, he will be arrested.’

Ottilia Maunganidze, a senior researcher at the ISS, notes that Bashir recently cancelled a trip to Indonesia to attend the Asian-African Leaders Conference. Though his office said he had cancelled because he was busy ‘monitoring post-election’ processes, she believes part of the reason was that advocacy groups and civil society had run a concerted campaign against his trip and called on Indonesia to arrest him. Even though Indonesia is not a state party to the Rome Statute governing the ICC, it can still cooperate with the court. The same would be sure to happen in South Africa. But that was not an AU summit.

Pretoria cannot continue indefinitely to maintain a public-private dichotomy on its position

Du Plessis, however, says that Bashir might want to come to South Africa to make a statement in solidarity with Kenya’s President Uhuru Kenyatta, about the retreat of the ICC. Kenyatta was indicted for alleged orchestration of post-election violence in 2007 and 2008.

But ICC Prosecutor Fatou Bensouda last year dropped charges against Kenyatta for want of evidence, and suspended the case against Bashir, berating the United Nations Security Council for failing to ensure that he was arrested and providing the necessary resources to her office to conduct the case.

The AU generally remains on bad terms with the ICC, though Maunganidze says relations are starting to thaw a little. But could South Africa suffer any repercussions from the AU if it emerges that it has disinvited Bashir, however clandestinely? In May 2012, shortly after taking office, Malawian President Joyce Banda made it clear that Bashir would not be welcome in Malawi to attend the mid-year AU summit. The AU responded by moving its summit to Addis Ababa. Could the same happen to South Africa? Current AU Chairperson Robert Mugabe would probably be rooting for Bashir’s attendance, given his extreme dislike of the ICC.

One would think South Africa might avoid Banda’s fate, given its greater size and heft in the AU, and the fact that it would handle this issue far more adroitly than the clumsy Banda who made it all too clear she was acting to avoid antagonising Western donors. Yet Pretoria cannot continue indefinitely to maintain a public-private dichotomy on its position. Officials of South Africa’s Department of International Relations and Cooperation are dodging the question of whether Bashir would be arrested if he visited South Africa. Eventually someone will, like Ntsaluba back in 2009, have to give an answer.

Will that bring down the wrath of the AU on Pretoria’s head?

Peter Fabricius, ISS Consultant