One of the more depressing news items lately has been the story of South Africa’s refusal to arrest Omar al-Bashir, the President of Sudan for whom the International Criminal Court has issued an arrest warrant. Despite that outstanding warrant, Bashir was allowed to come to South Africa for a meeting of the heads of state of the African Union, and when a South African court ordered that he not be permitted to leave until the court could decide what South Africa’s legal obligations to execute that warrant were, the South African government instead enabled him to fly out of the country. The Mail and Guardian, a South African newspaper, reports that this was the result of decisions at the highest levels of the government: “President Jacob Zuma and his key security ministers plotted to ensure Sudanese President Omar al-Bashir’s safe passage out of South Africa, flouting a court order and international convention,” it says.
That all sounds like the South African government putting political ties with Africa (and perhaps domestic politics as well) above legal obligations, and indeed that’s broadly how Obed Bapela, described by the Mail & Guardian as “the head of the ANC’s international relations sub-committee and deputy co-operative governance minister,” justified it. The Mail & Guardian quotes Bapela: “We would have been seen as lackeys of the West. We had to choose between the unity of Africa and the ICC and we chose Africa. We said we can deal with the ICC later.”
But there’s a twist. According to a news24 article, while South Africa considered whether or not to let al-Bashir leave, Sudan did not just wait patiently. Instead, “shortly after Al-Bashir left for the African Union summit,” Sudanese forces surrounded the bases of South African soldiers who are stationed in Sudan as UN peacekeepers. Moreover, the article indicates, the Sudanese forces would have been much better armed than the South Africans, because – even though the South Africans are in the country under a UN mandate – Sudan has repeatedly refused to allow South Africa to fly in additional military equipment for its troops. Fortunately for the South Africans, according to a soldier’s message quoted in news24, “The battalion commander said after Bashir touched down safely in Khartoum, all the [Sudanese] troops were withdrawn.”
Now the reason that al-Bashir’s case is before the International Criminal Court is that the UN Security Council referred the case to it. But the Security Council also must have provided the authority for the peacekeeping operation in Sudan, and thus for South Africa’s military presence there. Surely the UN was aware of Sudan's interference with South Africa's efforts to equip its troops fully. So if South Africa shrank from enforcing the ICC’s warrant in part because its troops were vulnerable to Sudanese pressure, isn’t that attributable at least in part to the Security Council itself?
One might ask, of course, why South Africa put up with this vulnerability, and why it decided to welcome al-Bashir at this meeting when he had for years been undercutting the South African soldiers stationed in his country. Certainly the Security Council is not solely responsible for the resulting crisis, even if South Africa’s ultimate actions were driven by concern for its troops. And in any event this fear may not have been the South African leaders' motivation; they may have been committed to defying the ICC all along, and if so then the reported Sudanese troop movements were just al-Bashir’s way of hedging his bets.
One more question: If, in fact, South Africa’s political leaders chose to send al-Bashir back because they feared his retribution against their soldiers, what should a South African court say about this? There are important reasons for a court to rule on the legality or illegality of the government’s actions, as a vindication of the rule of law. But an American court might answer that it should say nothing at all, because this kind of geopolitical, military maneuvering is beyond the courts’ competence – it raises “political questions” rather than judicial ones. An American court might also defer to the executive’s view that al-Bashir had head-of-state immunity while attending the African Union summit; that position may be relatively unpersuasive legally but a US court might defer to it because of the executive’s special responsibilities in the field of foreign affairs.
South African courts don’t generally accept that there are legal questions that they shouldn’t rule on, nor do they tend to defer to executive legal interpretations, and that commitment to principle is deeply admirable. But if there was ever a case for a South African court to avoid confrontation with the executive branch, this one perhaps is it.