Why did South Africa let Sudan's president come and go without arresting him?

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in news24, “The battalion commander said after Bashir touched down safely in Khartoum, all the [Sudanese] troops were withdrawn.”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. 

How to read statutes and what legislators say about them

When courts interpret statutes, should they focus only on the text? That’s not a crazy idea; when we try to understand what someone else is telling us, we often focus on the words that person is using. The trouble with doing this in ordinary life is that often people choose their words imperfectly, so we routinely fill in many possible blanks and resolve many possible inconsistencies by looking at the context – who the speaker is, what the situation is, what body language and facial expressions went along with the words, and so on.

How do our habits in ordinary conversation carry over to reading statutes? One possible answer is that with statutes we have nothing except the words themselves. To speak just of federal statutes, only their words are voted on by and signed into law by the President. And since there are a lot of different people responsible for the process of formal enactment (all the members of Congress, plus the President), we can’t ask the various questions we would in interpreting conversation, because there are too many “speakers” to try to attend to. Following this logic, we would disregard what’s called “legislative history” – the record of who said what about the legislation under consideration. We would attend only to the text, or in other words we would be “textualists.” (Attending to the text may be quite a complex business, though; “textualists” aren’t by any means always “literalists.”)

But attending only to the text ought to strike us as very odd. If legislators speak to each other about proposed laws, and in the course of those debates they say “This law would mean X,” it’s strange that later on a court trying to determine whether the law does mean X would give little or no weight to the legislators’ statements. It is true that no one voted on those statements – only the statute itself gets voted on – but if those statements clarify what the legislators thought they were voting on, it seems self-defeating for judges seeking insight to disregard the legislators’ understandings. Most members of the Supreme Court in fact wouldn’t totally disregard them, but Scalia and Thomas generally would – and many judges today are hesitant to give much emphasis to what may be found in legislative history.

That wouldn’t be so odd if legislative history were misleading and unreliable – and so it has often been said to be. But is it? One way to find out would be to ask people in Congress whether they in fact rely on it. But until recently, it appears that no one had ever asked. Now there’s an exception (actually there are two, but the earlier study was evidently a much less extensive inquiry than the one I’m discussing). In two long articles, Abbe Gluck of Yale and Lisa Schultz Bressman of Vanderbilt describe their survey of “137 congressional staffers drawn from both parties, both chambers of Congress, and spanning multiple committees.” (Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stanford L. Rev. 901, 902 (2013); Lisa Schultz Bressman & Abbe R. Gluck, Statutory Interpretation from the Inside—An Empirical Study of Congressional drafting, Delegation, and the Canons: Part II, 66 Stanford L. Rev. 725  (2014).)

Among their findings: “Perhaps most importantly, legislative history was emphatically viewed by almost all of our respondents—Republicans and Democrats, majority and minority—as the most important drafting and interpretive tool apart from text.” (Gluck & Bressman, Part I, at 965). Overall their respondents appeared to see legislative history as considerably more useful than many of the technical rules of interpretation (the “canons” of interpretation) that courts often use. (Id. at 966.)

As Bressman & Gluck carefully note, it’s possible to argue that legislative history should be disregarded even if it is reliable. But its supposed lack of reliability has certainly been an important reason why many judges have turned away from it. So this study not only suggests that perhaps judges should look more receptively to legislative history in the future, but also raises another question: why did judges accept the attack on legislative history’s reliability as readily as they apparently did, without anyone having actually checked whether that attack was factually well-founded?

One answer, which I think fits broadly with what Gluck and Bressman believe (they write about our potential “evolution” towards a true “Age of Statutes,” Bressman & Gluck, Part II, at 725), is that we are all still learning how to interpret statutes. We are novices, and we are prone to become infatuated with ideas that on more sober examination will prove problematic. But our infatuations aren’t randomly distributed. Nature abhors a vacuum, and we are prone to fill the space of our ignorance with our predispositions and our preferences – and the battles over interpretation have surely had strong political overtones. We can’t hope that politics, or profound disagreements over values, will someday cease to affect adjudication. But we can hope that if stubborn facts point to the value of a method of interpretation, then we will find a way to honor those facts, and look elsewhere for the tools of the ongoing arguments we have about values. We can, at least, hope!

The rule of law and the rules governing American passports

This past Monday, June 8, 2015, the Supreme Court decided in Zivotofsky v. Kerry that a federal statute, duly passed by Congress and signed by President George W. Bush, could not compel the State Department to allow U.S. citizens born in Jerusalem to have their place of birth in their passports be listed as “Israel.” The Court decided that the President has exclusive (even though not really explicit) constitutional authority to recognize foreign nations; that recognition includes recognition of particular territories as within, or not within, those nations’ sovereignty; that while the U.S. recognizes Israel, it has not recognized Jerusalem as within the sovereignty of either Israel or any other nation; and that compelling the State Department to issue passports that implicitly viewed Jerusalem as part of Israel would be inconsistent with the limits of the executive’s recognition decision.

This is a decision with potentially significant implications in the Middle East, and perhaps even greater implications for longstanding, unsettled questions concerning the dimensions of the power of the President and of Congress, particularly in the field of foreign affairs. In U.S. constitutional terms, one of the most encouraging features of the case is that, as Professor Marty Lederman has noted, although a majority of the Court endorsed the President’s exclusive and overriding authority in this instance, 8 of the 9 justices steered clear of sweeping affirmations of Presidential primacy of the sort that have sometimes been uttered and that rose to prominence during the Bush presidency. (Obama too exercises a lot of executive authority – too much, some observers say – but the rhetoric of power, at least, has been more restrained under him.)

The complicated constitutional issues of the case are already getting a lot of attention. I want to look at the case in cruder, but still illuminating, ways. Here’s one: the role of religion or ethnicity. The justices in the majority, who rejected Zivotofsky’s effort to get “Israel” listed as his birthplace in his U.S. passport (Zivotofsky, by the way, is still a child; his case was brought “by his parents and guardians,” Mr. and Mrs. Zivotofsky), included both of the Jews who sit on the Supreme Court. To whatever extent a “pro-Israel” position would have urged the opposite result, these two justices, Breyer and Ginsburg, declined to vote on religious/ethnic grounds – and that’s exactly what we should hope for from judges committed to the rule of law.

But here’s another: the role of politics. Breyer, Ginsburg, Kagan and Sotomayor are the four liberal members of the Supreme Court, and all of them voted with the majority, giving a victory to President Obama. Roberts, Scalia and Alito are all among the conservative members of the Court, and all of them dissented. Only Justice Kennedy, in many ways a conservative justice but also recurrently a swing voter, and Justice Thomas, certainly conservative but listening to his own jurisprudential drummer, voted in a way that seems contrary to their probable political inclinations.

In saying this I don’t mean that the justices sacrificed their principles for politics – something that, if it happened, would be a corrosion, or perhaps a breakdown, of the rule of law. That could happen, but the seeming fit of some justices’ votes and politics by itself is far short of showing it. Rather it suggests something natural and even good: that the justices reflected on their principles in light of the circumstances they addressed. In doing that, they did no more than what the justices in the famous Steel Seizure case (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)) may have done. There a majority of the Court rejected President Truman’s claim of authority to seize the nation’s steel industry so as to head off a strike that might have imperiled the Korean war effort, and set a crucial precedent on the dimensions of presidential and congressional power. I've seen it suggested that the Steel Seizure justices may well have reacted to the President’s claims of power in the context of disquiet about the war that then was being waged -- and context does, indeed, matter.

And here’s one more: the role of rhetoric. Justice Scalia dissents, and so he finds himself in disagreement not only with the majority but with Justice Thomas, who concurred in the majority’s result as to the passports but on his own, startling rationale. Here’s what Scalia says about Thomas’ rationale:

            Whereas the Court’s analysis threatens congressional power over foreign affairs with gradual erosion, the concurrence’s [Thomas’s] approach shatters it in one stroke. The combination of (a) the concurrence’s assertion of broad, unenumerated “residual powers” in the President …; (b) its parsimonious interpretation of Congress’s enumerated powers …; and (c) its even more parsimonious interpretation of Congress’s authority to enact laws “necessary and proper for carrying into Execution” the President’s executive powers …; produces (d) a presidency more reminiscent of George III than George Washington. (Scalia, J., dissenting, at page 19.)

This is strong stuff. An old country song lyric talks about how ways people can part: “when you leave that way, you can never go back." Do these words mark a lasting divide between two of the most conservative members of the Supreme Court? And could that divide have some impact on the Court’s future judgments? The rule of law, whatever exactly it consists of, is a regime fashioned by people, and this personal divide may affect the shape of US law.

The difference between the French and Americans

I'm reading an issue of Connaissance des Arts which introduces an exhibition at the Musee du Quai Branly called "The Masters of Sculpture of Cote d'Ivoire." (Apologies for the missing accent marks -- I can't figure out how to produce them here.)

The works of art are beautiful and the commentary is informative. But here's a note one wouldn't hear, I think, in an American museum publication. After discussing the fact that the names of the Baoule sculpture masters are lost in the "limbo of the past," the author, Berenice Geoffroy-Shneiter, writes (in my rough translation, at 18):

In the wake of the great American ethnologist Susan Vogel, the Belgian art historian Bernard de Grunne has nevertheless identified the "print" of seven masters whose arbitrary names refer, most often, to those of European art lovers who have collected their works. Small consolation.

What Ms. Geoffroy-Shneiter says is of course correct: to live on as, for instance, the "Master of Vlaminck" is (at least to Westerners) a somewhat disappointing form of immortality, an immortality marked by personal invisibility. And that is small consolation, to the artists if they can be consoled somehow, to the people of Cote d'Ivoire for whom these artists are part of their heritage, or to anyone else who wants to respect these sculptors as individual people. 

No doubt an American museum catalog would readily, and conscientiously, take note of the loss of these artists' true names, and perhaps place that loss in the context of the global art market over time -- which is essentially what Ms. Geoffroy-Shneiter has done. But the closing sentence -- "Small consolation" -- seems to leap from scholarly discussion to personal feeling, and from dispassion to irony. Those two words, I have to say, have a certain (Gallic?) style. 

The real perils of realpolitik

Sasha Polakow-Suransky, in his book The Unspoken Alliance: Israel's Secret Relationship with Apartheid South Africa (2010), details Israel's longstanding and extensive military links with apartheid South Africa, links that apparently included work on nuclear weapons and missiles that could carry them. 

The driving force behind the establishment of these ties, from Israel's perspective, was realpolitik rather than ideology. Shimon Peres played a significant role in establishing the program in its early years, when the Labor party ruled Israel. He "routinely denounced apartheid in public," Polakow-Suransky writes, and I assume those statements were sincere. But after a visit to South Africa in 1974, he wrote to the South African leaders he'd met with that "'this cooperation is based not only on common interest and on the determination to resist equally our enemies, but also on the unshakeable foundations of our common hatred of injustice and our refusal to submit to it.'" (Chapter 5, text preceding note 27, Kindle location 1639 of 7386).

After 1977, when Menachem Begin and Likud came to power, "the confluence of interests and similar ideologies pushed the two countries into a much more intimate relationship after 1977." Polakow-Suransky does not see the Likud leaders as racist, but he writes that Likud's "ethnonationalist ideology allowed Begin and other Likud leaders to stomach racist apartheid policies because these were part of a larger nationalist project designed to protect a minority group that believed its survival was threatened." (Chapter 6, text following note 25, Kindle location 2256 of 7386) 

The result was a program that provided both countries with substantial benefits during years when they had few other allies. But the trouble with realpolitik is that it so often comes back to haunt you. That was certainly the case here. Polakow-Suransky reports that in 1993 a far-left Israeli politician, Elazar Granot, spoke at the Socialist International and "lavished praise on [Nelson] Mandela, comparing him to Moses and arguing that South Africa's president-in-waiting was even greater than Moses for he had actually reached the Promised Land." But, "[a]s Granot recalls it, the first words from South Africa's icon of forgiveness and reconciliation were: 'The people of South Africa will never forget the support of the state of Israel to the apartheid regime.'" (Chapter 12, text at note 19, Kindle location 4517 of 7386). 

Unlikely events involving Neal Stephenson novels

Earlier this year I purchased a new, paperback copy of Neal Stephenson's book Reamde (2011), a slightly science-fictional global thriller that I had fun reading. But when I reached page 726, I found that pages 727-759 were missing from the book; not pulled out, just never bound in.

What made this especially odd was that some years ago I purchased a new, paperback copy of another Neal Stephenson book, Cryptonomicon (1999). I enjoyed that one too, but when I reached page 790, I found that pages 791-822 were missing from it; again, not pulled out, just never bound in. With Cryptonomicon, I went to the public library and read the missing pages there, but I didn't think l I should have to do that twice -- and fortunately, Stephenson's agent graciously sent me a new copy of Reamde that had all of its pages.

One possible explanation for my twice buying incomplete copies of Stephenson's books is that there are a lot of incomplete copies around. I hope that's not true, for the sake of Stephenson and his many other readers. But the second possible explanation (the one his agent confirmed) was that I was (in book-purchasing terms) struck by lightning twice. 

What can be the odds of this? If one out of 10,000 copies of Stephenson's books is incorrectly bound, then the chance of buying two would be about one in 100,000,000. That's really not very likely! But if this could happen, doesn't it seem that I should be due to win the lottery soon? 

Non-immortal verse

From my grandmother's poetry collection, the first stanza of an 1896 poem by Ella Wheeler Wilcox, titled "Custer":

All valor died not on the plains of Troy.
Awake, my Muse, awake! be thine the joy
To sing of deeds as dauntless and as brave
As e'er lent luster to a warrior's grave.
Sing of that noble soldier, nobler man,
Dear to the heart of each American.
Sound forth his praise sea to listening sea--
Greece her Achilles claimed, immortal Custer, we.

Of course it is right, especially on Memorial Day, to remember those who died in battle, and those who lived afterwards with the consequences of the wars. But sometimes the passage of years clarifies our view -- and improves our poetry.