Omar planning to leave tonight

By now Omar is safely in his den, laughing and gloating at the world and the families of his victims.




It is worth looking at a few issues because I doubt whether we can sink much lower in world opinion (of course we can, but the degree becomes irrelevant at some stage).

I would not put it beyond government incompetency that he escaped the grip of the law. It is however doubtful, as the intention clearly was, at all times, to allow him a safe return. Apart from the fact that the AU (driven by our own Dlamini-Zuma) and the ANC only now discovered that the ICC is racist, prior to the incident diplomatic representations were made by SA in the Netherlands  for safe transit of the fugitive. 

SA was told that there is no possibility in law for that. It is not as if this matter arose suddenly or that the arguments were not covered and shown to be false, in advance.

SA was one of the driving forces behind the creation of the court in 2002.






We have a national Act implementing the Court.





Apart from that, our Constitution clearly requires the application of international law (S39(1)(b)). 

There was no merit whatsoever in the arguments before the court concerning the arrest and in all likelihood they were orchestrated for purposes of delay. It defies belief that the government pretended not to  know that Omar fled from a military airport. It is laughable to say that

“The minister of state security and the minister in the presidency have informed me that the circumstances of his departure will be fully investigated,” he added.

See the following extract for the context of that statement:



To discover now, 13 years later, that the ICC is racist (with a black prosecutor to boot), is disingenuous. 








There was ample time earlier to withdraw from the court and it is easy enough.




The fact that this has not been done is strongly suggestive that what is of concern here is not effective law or 'racism', but the protection of the individual concerned.

At the very least the South African law on the issue could have been undone.

One asks oneself, does the government condone what the fugitive is alleged to have done? If not, what do they intend to do about it? Why then does the AU not establish its own court for dealing with these atrocities?

To say that the ICC is toothless is trite. It is a weakness of International Law as a whole. That does not undo its status as law or make it an excuse to ignore it. To attack the institution at this stage is facetious and an overt attempt to let a possible murderer go free.

All in all, the SA government is nothing less but an accessory after the fact, complicit in the commission of crimes against humanity, for letting a fugitive escape and violating numerous laws. In fact, it would be interesting to count how many laws have been ignored.

As for the Waterkloof military airbase, does the government not know what goes on at its military institutions? Howe on earth does it happen that a fugitive's plane is allowed there at all?

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Edited to add:

I wonder if Jake got permission from baas Atul Gupta to use Waterkloof airbase?

[For an updated version of this post, see this thread]

TECHNICAL LEGAL CONSIDERATIONS IN THE AL-BASHIR CASE

The actual text of the South African three judge decision and reasoning, can be found here.

Since the media seldom canvass the more technical legal aspects of court cases, here is a response to what appears to be the government's case on the merits. The first issue is easily disposed of: It is unlikely that they have any excuse for ignoring the initial judicial command to arrest Al-Bashir.

On the merits of the case:





WHAT THE DIPLOMATIC IMMUNITIES AND PRIVILEGES ACT 37
OF 2001 SAYS ( with effect from 28 February 2002) - emphasis added – referred to in the commentary as the “Immunities Act” ).





CUSTOMARY INTERNATIONAL LAW (section 4(1)(a))

Booysen (Volkereg, 1980, pp 211-213) expresses doubt whether in fact there is Customary International Law granting immunity. He considers that the issue is regulated mostly by domestic legal systems and that the various states make up their own rules. Akehurst (Modern Introduction to International Law, 2nd ed, 2nd Impression, pp 70-71 & pp137-140 ) does not doubt the existence of such International Law rule and views the issue of immunity generally as a spin-off of the act of state doctrine (pp147-148). Very broadly the doctrine means that the independence of foreign states has to be respected. Interestingly enough, he says, however, that the doctrine (and immunity by implication) cannot be pleaded as a defence to charges of war crimes, crimes against peace, crimes against humanity and genocide. He uses the Nuremburg trials and the subsequent legal doctrines as support.


However, the International Court of Justice in the Arrest Warrant Case (Democratic Republic of the Congo v Belgium) confirmed immunity for sitting foreign ministers.

Here is an account of the reasoning:




Presumably the same views would apply to a head of state (rather than a foreign minister)

In terms of our constitution (section 232) customary international law is binding unless it conflicts with either our statutes or the constitution. In other words, in accordance with section 4(1)(a) above and the Arrest Warrant Case, it seems that Al-Bashir would have enjoyed immunity. It is possible to argue that sections 6 and 7, seen in isolation, only apply to diplomats and the like (not heads of state). However, section 7(2) read with 4(1)(c) seems to make it clear that heads of state have immunity and that special immunity can also be granted to heads of state.

There is some irony in this since, during the Apartheid Years, Professor Dugard maintained in the face of an unenthusiastic SA judiciary that greater reliance on International Law was justified (and authorised by our sources). See for example Dugard: International Human–Rights Norms in Domestic Courts in Fiat Iustitia (Editor E Kahn) at pp 232-241). Now justice is thwarted by the longed-for International Law. At this level of the argument, anyway.

Round 1, to the state.

Furthermore, so the state claims, immunity can also be conferred by Section 7(2) and it has a notice to prove that fact.

Round 2, to the state.

THE ROME STATUTE AS APPLIED TO SA.

The Rome Statute is an international agreement signed, at the time, with great enthusiasm by SA. Not only that, it was meticulously legislated into our law (Implementation of the Rome Statute of the International Criminal Court Act, 2002 - the ICC Act, for short), with effect from 16 August 2002.







The preamble to the act abounds with lofty ideals:






Far reaching jurisdiction is given to SA courts (emphasis added):





The jurisdiction bestowed here would override customary international law because it is contained in a statute (see section 232 of the constitution), and because it reflects an international agreement we signed (being international law as intended by section 231 and 233 of the constitution). This implementation statute also overrules the  Immunities Act because it is a later act and deals specifically with the issues – the Diplomatic Immunities Act is more general (Steyn: Uitleg van Wette (5ed), p188 et seq).

Section 7 of the Act refers extensively to the Immunities Act. In other words, the legislature was fully aware of that Act and deliberately refrained from qualifying the sweeping language in which jurisdiction is bestowed on the domestic judiciary.

With regard to the procedure governing warrants of arrest, there are two possibilities. The one is where a warrant had been issued by the ICC and is passed on for execution in the member country (“State Party”); The other is where the member country is faced with the task of issuing a warrant right from the start (Section 9). I am assuming (with reference to the quote below) that we are faced with the first situation and mainly want to point out that no discretion is allowed in executing the warrant.





Finally, I append commentary by Du Plessis about immunity (op cit p12 ):

www.bdlive.co.za/national/2015/07/27/eu-berates-sa-over-letting-bashir-escape

EU berates SA over letting Bashir escape

SOUTH Africa should have prevented Sudan’s President Omar al-Bashir from leaving the country‚ a delegation from the European Union’s (EU’s) parliament said‚ but the African National Congress (ANC) maintains the country’s failure to arrest him had been "for the greater good of humanity".

The delegation met representatives of SA’s parliament for two days last week to discuss issues around trade‚ development and international relations.

However‚ when it came to discussions around Sudan‚ chair of the European delegation Hans van Baalen made it clear that SA’s position did not stand up in international law.

"Unfortunately‚ I am an international lawyer and have looked into cases like the Yugoslavian tribunal and if a country signs an international treaty‚ it is committed to that‚" he said.

"SA should have prevented al-Bashir from leaving the country‚" he said.

...

The South African delegation‚ made up of MPs from the ANC‚ the Democratic Alliance (DA) and the African Christian Democratic Party (ACDP)‚ which had presented a united front on several issues‚ differed strongly‚ but politely on the issue of Mr Bashir’s arrest.

Chair of the South African delegation‚ Joanmarie Fubbs‚ said that although the country was a "supporter of good governance and law", it was balancing its international obligations and its obligations on the continent when it had not effected the arrest of the "honourable al-Bashir".

She said the International Criminal Court’s original charges against Mr Bashir had been "considerably reduced" and SA’s route had always been one of reconciliation and regional integration.

She said that while the decision was based on "considerations I was not privy to" the country had to bear the safety of peacekeeping troops in Sudan in mind.

"We were not prepared to allow another CAR (Central African Republic). We went there as a peacekeeping training group and we buried our soldiers here."

News reports at the time indicated that South African troops had come under some pressure in Sudan as a result‚ but government denied this.

...

The EU’s Boris Zala, who is also vice-chair of the delegation, said that African countries often said that the International Criminal Court had an unfair focus on African countries.

However, he said: "The international tribunal on Yugoslavia was very active and sentenced nearly 20 people. It hunted them for 15 years‚ actively. No one escaped the hand of justice."