There can be little doubt that the discreditable episode of Sudanese President Omar al Bashir’s attendance at the African Union summit in South Africa earlier this month has been most damaging to this country. That Al Bashir is wanted for most serious crimes by the International Criminal Court (ICC) is general knowledge. The Court has issued two arrest warrants for him, on March 4, 2009, and July 12, 2010. In its summary of the case on its website, the ICC stated that “Al Bashir is allegedly criminally responsible for ten counts on the basis of his individual criminal responsibility under Article 25(3)(a) of the Rome Statute as an indirect (co) perpetrator . . .”, these counts being five for crimes against humanity, two for war crimes and three for genocide. (The Rome Statute is the international treaty which set up and governs the ICC.)

In all, 34 African countries are parties to the Statute. Indeed, so far, four African countries have referred cases from their territories to the ICC. They are the Central African Republic, the Democratic Republic of Congo, Mali and Uganda. Most of these are against rebel groups and their leaders. South Africa, under an African National Congress (ANC) government, signed and ratified the Rome Statute in 1998, becoming the twenty-third country in the world to do so.

Not only that, but, in 2002, South Africa passed the Implementation of the Rome Statute of the International Criminal Court Act 27, which incorporated the Rome Statute into its domestic law. Again, note, this was done by an ANC administration with a strong majority in Parliament. The preamble to this Act includes the statement that “the Republic of South Africa is committed to bringing persons who commit such atrocities (genocide, crimes against humanity and war crimes) to justice, either in a court of law of the Republic in terms of its domestic laws, where possible, pursuant to its international obligations to do so when the Republic became party to the Rome Statute of the International Criminal Court, or . . . in the International Criminal Court . . .”. Interestingly, Chapter 2, Paragraph 2, of the Act states: “Despite any other law to the contrary, including customary and conventional international law, the fact that a person – is or was a head of State or government, a member of a government or Parliament, an elected representative or a government official; . . . is neither (i) a defence to a crime; nor (ii) a ground for any possible reduction in sentence once a person has been convicted of a crime.”

Whatever the case may be, there does seem to be wide agreement that South Africa had the choice of refusing Al Bashir entry or arresting him if he landed in the country. By allowing him to come to the summit, by not detaining him in the country when ordered to do so by the High Court and by allowing him to leave the country (there is no way he could have left without the knowledge and permission of the government), the government violated the rule of law. Not international law – that’s not really important – but South African law. That is the crucial point. The South African government knowingly engaged in contempt of court to protect Al Bashir. Worse, if Zimbabwean President Robert Mugabe is to be believed, President Jacob Zuma and his administration had decided in advance that they would ignore any court orders regarding the Sudanese leader. If they are willing to do that for a foreign leader, what might they be willing to do to protect scandal-enveloped President Zuma himself? It is an ominous precedent.

The damage to South Africa’s international image is, in comparison, very secondary, although not unimportant. The country has displayed weakness: too weak to deny Al Bashir entry or to arrest him, but also too weak to leave the ICC and repeal the 2002 Act, thereby ending any obligation to arrest him. Moreover, any shreds of moral authority the country had retained, following the recent xenophobic attacks, have clearly been torn away. But let’s be brutally frank: moral authority doesn’t, in reality, amount to much. It’s really a form of diplomatic flattery. And it can never be kept for long – the nature of the world doesn’t permit that. What is important is how moral authority is lost. Is it through some decisive action that, at least, garners respect? Or is it lost in a manner that generates contempt? Alas, the latter seems to be the case for South Africa, under the Zuma administration.

Certainly, if reports about Sudanese troop movements that threatened South African troops serving in that country as peacekeepers were correct, Khartoum showed no respect for South Africa at all. The South African National Defence Force has strongly denied that these troops were held hostage or surrounded, until Al Bashir left South Africa. These denials were, almost certainly, correct – strictly speaking. But the media reports were based on accounts by South African soldiers in Sudan. It looks as if Sudanese forces positioned themselves close to the South African bases, but took no threatening actions or made any threatening communications. In what is known as “tacit signalling” or “tacit bargaining”, their simple presence was the message and the threat. The South Africans were left to draw their own conclusions. (This was undoubtedly a backup plan in case the South African government actually considered implementing the court order.)

But here’s the thing: the South African troops were and are in Sudan as part of a United Nations (UN) force. Any attack on them would automatically have been an attack on the UN. The entire Security Council would have been enraged and severe consequences for Sudan would have followed. So the implicit Sudanese threat was a bluff. Khartoum would never have dared to take action. This tells us that Al Bashir and his regime were confident that the Zuma administration would cave in, if threatened. So, however you cut it, whether in terms of morality, law or power, these events have hurt South Africa internationally, but especially domestically.