In international criminal justice circles, as between international law academics, and over discussions between government officials within and outside Africa, one theme dominated June of 2015: SouthAfrica's decision to host President Omar Al-Bashir of Sudan who had been invited to attend the African Union (AU) Summit in SouthAfrica.
The ingredients for drama were all there. First, Al-Bashir is a suspected international criminal wanted for an unholy trinity of crimes – genocide, war crimes and crimes against humanity. Second, SouthAfrica is a leading African democracy whic his a member of the International Criminal Court. Third, Al-Bashir's rumoured presence at the summit turned into a reality as images of him standing alongside President Zuma and other African leaders were beamed around the world. Fourth, ANC spin doctors and government spokespersons proclaimed that SouthAfrica was obliged to honour the AU's call to respect Al-Bashir's immunity as a head of state. Fifth, and perhaps quite significantly, urgent court action was mobilised by civil society to ensure his arrest. Sixth, contradictory accounts were given by government lawyers to the Court about his continued presence in SouthAfrica, and controversially, while the Court was ordering that he not leave SouthAfrica, he was in fact leaving under protection of a blue light brigade allegedly courtesy of the SouthAfrican government.
As one hears the back and forthbetween legal luminaries, academics, judges and politicians, the debate is reduced to one about competing obligations. The argument goes that regarding AU member states that are also states parties to the Rome Statute, there would appear to be a conflict between the binding obligations imposed by the Rome Statute and the binding obligations imposed by the Decisions of the AU. Given that there are obligations that pull in two different directions, the argument (by those attempting to justify SouthAfrica's behaviour) is that SouthAfrica can't be blamed for how it dealt withAl-Bashir's visit – since it was caught in a norm conflict.
The suggestion is that SouthAfrica was a rabbit caught in the headlights (one beam shone from the ICC demanding arrest; the other light lasering in from the AU demanding respect for Al-Bashir's immunity).