/ 15 July 2009

The bloody repercussions of the AU’s support for Al-Bashir

On my desk, I have a memorandum documenting the activities of a number of businesses that have knowingly financed conflict in the Southern African region in order to obtain lucrative mineral resources.

Such profiteering arguably constitutes war crimes. Several of these businesses have South African connections.

As I looked on the web at the board of directors of one of these companies and considered what it might mean to seek their prosecution, I had a few moments’ hesitation. After all, these men look like my father.

In their short shirtsleeves and relaxed, friendly grins, they could be my father’s friends. They don’t have the dead-eyed, vacant stare of the demobilising Revolutionary United Front fighters whom I saw in Sierra Leone in 2001.

They don’t have rounds of ammunition slung about their shoulders. They aren’t toting guns. In short, they don’t look like war criminals. But if the allegations against them prove true, they are.

In providing financial incentive for continuing the conflict, for terrorising and subduing the civilian population in the resource-rich territories, they are as much responsible as those who gave orders that the territories be captured.

My initial hesitation — a fleeting unease that these men’s lives would be made difficult by our efforts; an instinctive, but mistaken, apprehension that they weren’t the individuals we should be pursuing under South Africa’s Implementation of the Rome Statute for the International Criminal Court Act — stemmed from a sense of self-identification.

There was likely an even stronger sense of self-identification prevailing at the African Union summit this week as foreign ministers voted not to cooperate with the indictment issued by the International Criminal Court (ICC) against Sudan’s President Omar al-Bashir. In his travails, perhaps they see the prospect of their own.

This development, although disappointing, is not surprising: leaders, qua leaders, are always likely to have little enthusiasm for acting against one of their own. More significant than their own motivations, however, is the public legitimacy they reckon they can count on for such positions.

And this is where the issue gets tricky. Many thoughtful people across the continent, exasperated by the double standards and inequality which persist within the international legal order, will approve of what is, in effect, a slap in the face to the system and its proponents who would hold Bashir accountable but see the likes of George Bush, Dick Cheney and Donald Rumsfeld go free.

The truth of the matter is that Cheney and company are likely to be at large, and even fêted, for a long while yet. There is no getting round this disparity. But that this imbalance shouldn’t prevent us from seeking justice where we can is illustrated by a thought experiment relating to domestic justice.

Imagine that on your drive to work, you pass two women, each waiting by a different set of traffic lights in the hopes of money and food. One morning, one of the women unintentionally obstructs the traffic.

A man driving a luxurious sports car exits his vehicle and in a fury assaults her for impeding his path. The next morning, the same scenario unfolds in respect of the second woman, except this time her assailant drives a clapped-out car.

Now imagine that the driver of the first car is very well connected and enormously wealthy, ensuring that he will never have to account for his assault on the first woman.

It is a travesty and one we would likely protest against, but it is very unlikely that it would alter our insistence that the second driver still be made to account. It is hard to imagine that we would call for his responsibility to be delayed until such time as the first driver is also made to bear responsibility.

Admittedly, this is a somewhat strained analogy and doesn’t capture all the dynamics at play in the international context, but it does redirect our attention — reminding us that ensuring parity between perpetrators and securing accountability for the injured and harmed are separate questions and shouldn’t be confused.

In any event, Cheney and company are unlikely always to evade the reach of international justice. As much of the world protests against the disparity, they embolden and strengthen the efforts of those in the United States who seek to bring these men before domestic judicial processes.

The Rome Statute, which created the ICC, recognises that domestic justice efforts are preferable to those in far-flung, foreign places and provides that the ICC’s jurisdiction is ousted when states genuinely use domestic processes for securing justice — a provision that those who voted for the recent African Union resolution would do well to remember if they are truly concerned for ICC interference in Africa.

But laws such as South Africa’s, which domesticate its Rome Statute obligations, also allow for prosecutions of Cheney and company should they ever come to South Africa. Were other countries to follow this example, the net would only tighten. Instead, the AU resolution takes us away from that direction, and pulls South Africa from its leadership perch.

It suggests to al-Bashir that he can breathe more easily. But, in showing that commitment to the principles of international criminal justice is changeable, the AU also lets all those inside and outside the continent who have profited from its bloodshed rest more easily.

And it makes the prospect of justice for those who seem most immune — war criminals of the most powerful, developed states — less, not more, likely.

Nicole Fritz is the director of the Southern Africa Litigation Centre