Status on President El Bashir

NATIONAL ASSEMBLY

FOR ORAL REPLY

QUESTION NO: 11

PUBLISHED IN INTERNAL QUESTION PAPER NO 8 0F 11 AUGUST 2009

MR K.S MUBU [DA] TO ASK THE MINISTER OF INTERNATIONAL RELATIONS AND COOPERATION:

[i] On what basis was the decision taken by the South African representatives not to dissent the stance adopted by the African Union [AU] on 3 July 2009 regarding a certain person [name and details furnished]? ; [ii] whether the Government allows individuals representing South Africa at organisations like the AU and UN to promote a stance other than that of which the Government is bound to promote because of agreements, conventions, international law and the Constitution of the Republic of South Africa, Act 108 of 1996; if not, why did the Government not withdraw the decision by its representatives at the AU; if so, what are the relevant details?; Lastly, the DA would like to know [iii] Whether the Government intends to arrest the above mentioned person if he enters South Africa?; if not, why not? If so, what are the relevant details?  NO.837E 

REPLY TO THE DA:

 [1] On what basis was the decision taken by the South African representatives not to dissent the stance adopted by the African Union (AU) on 3 July 2009 regarding a certain person (name furnished);

A: In conformity with Rule 18 of the Rules of Procedure of the Assembly of the Union, decisions of the Assembly of the African Union are arrived at by consensus, failing which, by two thirds majority of the Member States eligible to vote.

The decision was arrived at on the basis of the recommendations of the meeting of African States Parties to the Rome Statute held on 9 June 2009 as well as the recommendations made by the Executive Council, at which Council a number of amendments were made to the draft decision. The Assembly decision was adopted by consensus with only one opinion to the contrary, which was duly recorded as a reservation. The Council was guided in its decision by recommendations of a Committee of Six that was set up by the Executive Council in Sirte, Libya to resolve some outstanding issues. The decision reflects the consistent position of AU member states to combating impunity and promoting democracy, the rule of law and good governance on the continent as enunciated in the Constitutive Act of the Union.

The above decision was taken in view of the fact that since July 2008, the AU has been calling for the United Nations Security Council to invoke Article 16 of the ICC, which makes provision for the deferral or prosecution for a period of 12 months.  To date, the United Nations Security Council has not taken any action on the call by the AU and other organisations. 

In its call for deferral, the AU stated that it does not support impunity in the Sudan, but would like to give space and time for finding a lasting and comprehensive solution that strikes a balance between the needs for a peaceful solution and the demands for justice for crimes committed in Darfur. To assist the Sudanese in this difficult task, the AU High-level Panel on Darfur was formally inaugurated in March 2009. 

 [2] whether the Government allows individuals representing South Africa at organisations like the AU and UN to promote a stance other than that of which the Government is bound to promote because of agreements, conventions, international law and the Constitution of the Republic of South Africa, Act 108 of 1996; if not, (a) why did the Government not withdraw the decision by its representatives at the AU; if so, what are the relevant details;

A: Individuals do not represent or articulate personal views at meetings of international organisations in which South Africa participates. The South African delegation’s participation in such meetings is in an official capacity, informed by our Government’s official position on the issue.

 [3]  whether the Government intends to arrest the above-mentioned person if he enters South Africa; if not, why not; if so,

 A: As a founding Member of the ICC and a signatory to the Rome Statute of the International Criminal Court, South Africa is under international obligation to comply with the ICC’s request should any person against whom an arrest warrant has been issued. As an international arrest warrant for President El Bashir has been received and endorsed by a South African magistrate, this means that if President El Bashir arrives on South African territory, he will be liable for arrest.  Provisions of the Rome Statute have been domesticated through the International Criminal Court Act into South African Law.  This has been given constitutional endorsement by Section 232 of the Constitution, which provides that, “Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.” 

[4]  whether the Government will deliver him to the International Criminal Court; if not, why not; if so, what are the relevant details?         

South Africa will fulfil her international obligations as outlined in my earlier response.