Damned if we do ...

15 June 2015 - 02:29 By Sipho Masombuka and Matthew Savides

The government is sitting on a diplomatic time bomb with the world's attention focused on the outcome of today's court bid to have Sudanese President Omar al-Bashir arrested in South Africa on charges of war crimes. The Pretoria High Court yesterday temporarily barred al-Bashir, who is attending an African Union summit in Johannesburg, from leaving South Africa pending the outcome of an application for a court order that would oblige Pretoria to execute an International Criminal Court warrant for his arrest.Judge Hans Fabricius yesterday ordered the government to ensure that al-Bashir stays put until after the application brought by the Southern African Litigation Centre is heard today.But unconfirmed reports last night emanating from Sudan said al-Bashir had left South Africa. Attempts to get comment from International Relations spokesman Nelson Kgwete and Presidency spokesman Harold Maloka last night were unsuccessful.South Africa's hosting of al-Bashir and its granting of diplomatic immunity to all heads of state and government at the summit aligns this country with Malawi, Egypt and others in showing contempt for international law obligations.The Sudanese leader attended a trade conference at an Egyptian resort last week and the ICC has referred Malawi to the UN security council for its refusal to hand over al-Bashir at a previous heads-of-state meeting.The ANC has accused the ICC of unfairly targeting African leaders and of allowing human rights violations by countries that are not signatories to the ICC convention to go unpunished."Countries, mainly in Africa and Eastern Europe which, due to their unwavering commitment to upholding human rights and universal justice have elected to be signatories to the ICC, continue to bear the brunt of the decisions of the ICC, with Sudan being the latest example," the ANC said.Centre for Constitutional Rights director Johan Kruger said South Africa was bound in terms of section 231 of its constitution, and by the Rome Statute of the International Criminal Court Act.He said the immunity granted to AU summit delegates would fail to meet constitutional muster if its purpose was to protect al-Bashir from prosecution or extradition.Political analyst Adam Habib said al-Bashir was unlikely to be arrested in South Africa."The government is in a dilemma. If it acts, it will alienate a whole host of countries. If it doesn't, there will be criticism," said Habib.Analyst Steven Friedman agreed : "It's a no-win situation; an impossible situation."Siphamandla Zondi, head of the Institute for Global Dialogue at the University of SA, said: "South Africa is obliged by domestic law to honour the decisions of the court because we are a constitutional democracy."But there are real hurdles to this. One is whether it is practical to rescind the immunity granted to the delegates at the [AU] summit ... and enable the implementation of the order," he said.In its court papers, the Southern African Litigation Centre alleges that al-Bashir is responsible for murder, rape, torture, extermination and forcibly moving large numbers of civilians in Darfur during a five-year counter-insurgency campaign from 2003.The conflict resulted in the deaths of more than 300000 people and displacement of 2.5million, according to the UN.Back in 2009, South Africa said it would be obliged to arrest al-Bashir if he set foot in the country in terms of the Rome Statute...

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