There are many reasons why South Africa would be ill-advised to arrest Sudanese President Omar al-Bashir. These include, but are not limited to:
- placing our bilateral relations with Sudan, some of her neighbours and the wider Muslim world in harm’s way. South Africa currently has thousands of police and military personnel serving under the United Nations–African Union Mission in Darfur, Sudan. We must visualise likely scenarios of what might befall these South Africans were we to arrest President Bashir. This means considering something which regrettably does not come naturally and easily among sections of South African society, i.e. the national interest;
- weakening and dividing instead of strengthening the African Union and promoting continental unity. President Bashir is in South Africa at the invitation of the AU, which does not have sanctions over him. Arresting him would serve to weaken and divide the AU because it would imply that we are unable if not unwilling to protect the AU when it matters most.
- United Nations–African Union Mission in DarfurUnited Nations–African Union Mission in Darfur
By comparison, the US government does not arrest foreign Heads of State and Government, even when it has sanctions over them, when they attend the UN General Assembly every September. They would, without doubt, weaken and eventually destroy the UN were they to do so.
- creating a new and uncertain political reality in Sudan which, given the country’s enormous political and social challenges, may exacerbate rather than ameliorate problems. It would possibly cast a death sentence on the on-going AU-led process of resolving Sudan’s political challenges and thus deepen crisis in an unstable region of the continent. The process to normalise Sudan is supposed to lead to a ‘National Dialogue’, their CODESA-type initiative which is due to commence soon and is supposed to discuss: (a) ending armed conflicts around the country; (b) democratisation; the economy; (c) national identity; and, (d) Sudan’s relations with the rest of the world; and,
- placing South Africa’s system of international relations on trial and introduce a foreign policy crisis of unprecedented proportions.
These are essentially political more than they are legal questions. For this reason, the AU has, on more than one occasion, requested the UN Security Council to defer the warrant of arrest against President Bashir to enable the Union to engage with Sudan’s political players to find a lasting political solution which would necessarily have to address the issues of accountability and justice as well as the fundamental and unavoidable issue of national reconciliation. To date, the Security Council has not responded to the AU.
And so it is that external factors do stand in the way of the resolution of Sudan’s political challenges as they do elsewhere on the continent and beyond.
The school of thought which superordinates legal processes over all other factors overlooks the local and global political contexts in which the law is applied. (As an aside, the US, Russia and China are not signatories to the ICC. Yet, as members of the UN Security Council, they have the power to refer matters to the ICC.)
Very few would deny the vital need for accountability and justice in the context of Sudan’s conflicts. But the insistence that all there is to the issue is (ICC) justice, an ICC of which Sudan is not a member, is a form of fundamentalism which would exacerbate rather than resolve those conflicts.
This fundamentalism also mischaracterises the political and complex nature of Africa’s conflicts, and in particular overlooks many as-yet-to-be-resolved socio-historical factors – enduring colonial relations that produce conflict in Africa. The successful resolution of these conflicts is fraught with political difficulties at the local and international levels.
Against this background of complexity, the selective oversimplifications of the overzealous justice fundamentalists renders their activism suspect and might betray other underlying motives.
Consider the so-called South African miracle (for miracle there wasn’t), which is repeatedly cited as an achievement because of the victims’ preparedness to cohabit peacefully with the captains of apartheid. As if they need such condescending counsels, the victims are regularly lectured on the virtues not only of forgiving but forgetting about their painful past altogether.
Forgetting in this context has a double meaning. It carries the literal act of expunging experience from memory and thus serves to exorcise the guilt of the oppressor, while by the same token requiring the victims to do nothing about righting the wrongs of the colonial and apartheid era!
Given the value attached to the South African ‘miracle,’ why then is it now impermissible to allow the same approach to serve the resolution of conflicts beyond South Africa?
The answer is hardly jaw breaking! It lies in “coloniality”, which, alas, lives happily long after decolonisation. And it is to coloniality to which we must turn to understand why it is that national and global discourse on human rights abuses focuses nearly exclusively on Africa.