The Government of South Africa continues to be bombarded with criticism regarding its handling of a visit last summer by Sudanese President Omar al-Bashir, who faces war crimes, crimes against humanity, and genocide charges at the International Criminal Court (ICC) for his alleged responsibility for atrocities committed in Darfur. Two weeks ago, the South African Supreme Court of Appeal ruled that the government had broken the law in not arresting and surrendering Bashir to the ICC as well as allowing him to leave the country despite a order issued a domestic court to prohibit his departure. It was a significant blow for the government. And the blows keep coming.
This week, Thuli Madonsela, South Africa’s Public Prosecutor insisted that, even though Bashir was allowed to leave the country in defiance of court orders, the strength of South Africa’s rule of law ensured that he had to sneak out “like a little criminal”. Then, in a belated review of South Africa’s human rights record, the United Nations Human Rights Committee continued to pile-on. In its report, the Committee observed that the failure of South African authorities to detain and surrender Bashir was “inconsistent with the Constitution” and that Bashir’s ability to leave the country came “in violation of an interim Court order”. It added that South Africa “should continue its investigation of the events surrounding the failure to comply with the interim Court order on President Al-Bashir and take the necessary measures to ensure compliance with rulings of domestic courts, including in cases relating to the State party’s international treaty obligations.”
Such determinations and rulings are undoubtedly important. But what may, on first glance, seem to be a legal battle that will keep lawyers and advocates employed, literally as well as in argument, for years to come, also has the potential to morph into a criminal matter. While it hasn’t received significant attention outside of the country, the potential for criminal charges being laid has been intimated in all of the rulings of South African courts on the matter. Allowing Bashir to leave in violation of a court order explicitly prohibiting his departure may lead to criminal proceedings levied against those responsible. And that’s not all…
There is also an argument that members of the South African government who had been closely involved in assisting Bashir escape South Africa in the face of the existing court order by the Pretoria High Court (and the warrants of arrest issued by the ICC) might be considered as accessories after the fact to genocide.
This was the viewpoint put forward by Max du Plessis, a South African advocate who is a senior research associate at the Institute for Security Studies and an associate professor of law at the University of KwaZulu-Natal, during a panel discussion on head of state immunity in Cape Town, South Africa. According to du Plessis, South African officials may have made themselves liable as accomplices after the fact to Bashir’s alleged genocide in Darfur. In South African law, as in other legal systems, an accessory after the fact is someone who assists another 1) who has committed a crime, 2) after the person has committed the crime, 3) with knowledge that the person committed the crime, and 4) with the intent to help the person avoid arrest or punishment. An accessory after the fact may be held liable for, inter alia, obstruction of justice.
To clarify the point and how it relates to the Bashir case, du Plessis invoked a domestic analogy: Imagine that you invited and allowed a charged murderer into your home. You entertain and protect them. The police arrive to ask you whether you are harbouring a fugitive murderer. You tell the killer to hide and deny that they are in the house or that you know where they are. You then tell the murderer to leave and show them how to do so without getting caught by the police. In such a scenario, you have become an accessory to murder after the fact.
Just how well does this fit what happened with Bashir in South Africa? Like a glove. There are two outstanding ICC arrest warrants for Bashir. South Africa, a member-state of the Court with legal obligations to surrender him to The Hague, invited the Sudanese President to attend an African Union conference in Pretoria and Johannesburg. When he arrived, a domestic Court instructed the government to prohibit Bashir from leaving the country until it could rule on whether South Africa had a domestic, legal obligation to send him the ICC. Then, as South African officials incredulously denied that they knew where Bashir was, his plane was flown just a few miles to a military airport controlled by the government so that he could safely flee the country back to Khartoum.
The argument put forward by du Plessis is clear and compelling, even if the chances of any South African officials being charged with being an accessory to genocide after the fact are slim to none (although, again, criminal proceedings against authorities for breaking South African law are entirely possible). But du Plessis’ argument is both original and worth exploring. The sad truth is that a decade after the United Nations Security Council referred the situation in Darfur to the ICC, accountability for the crimes committed there is hasn’t been advanced one iota. As a result, and as I argued a few weeks ago, in the fight for justice and accountability in Darfur, there is a desperate need for creative thinking. In this context, arguments like that propagated by du Plessis may not have the effect of deterring Bashir from committing more mass atrocities in Darfur or elsewhere. But they may just hold the key to deterring states like South Africa from rolling out the red carpet for the vilest of perpetrators.