Last month the President of Sudan, Omar al-Bashir, fled from South Africa in face of his potential arrest as he attended an African Union Summit in Johannesburg. The days following have shaken the debate surrounding the nexus of international law, constitutional duty, and regional obligations.
On this day marking the anniversary of the founding treaty of the International Criminal Court—celebrated by united support of the mission for worldwide justice—the spotlight must shine on an injustice that continues to go unpunished.
Bashir is the only sitting president wanted by the ICC, which issued two warrants for his arrest on charges of multiple counts of genocide, crimes against humanity, and war crimes for the bloody government-backed campaign that has killed hundreds of thousands of innocent lives in Darfur since 2003.
“The question we need to ask of ourselves today is whether the people of Darfur, who continue to endure the suffering widely recognized by, amongst others, the African Union, will ever receive the justice they deserve?” – ICC Prosecutor Fatou Bensouda
As South Africa is a member of the ICC and has also incorporated the Rome Statute into the country’s own law, there should have been no ambiguity that South Africa was duty-bound, both under international and domestic law, to arrest and surrender Bashir to the ICC if he entered the country. Yet he was allowed in, prompting legal proceedings against the government to secure an order for his arrest.
Though a high court ordered Bashir to stay in South Africa while it decided whether he should be arrested, just hours before the court handed down the arrest order, on the final day of the summit, he left the country on his own plane from Waterkloof Air Force Base, setting off a flurry of speculation on the level of government involvement.
Numerous reports alleged Bashir’s exit was planned by South African president Jacob Zuma and senior ministers. The government’s tune has changed in the aftermath, first claiming it had no knowledge of Bashir’s exit, to now stating it was a conscious decision to disobey the court order and allow for his escape in order to not be ostracized from other countries on the continent.
In the six years since the issuance of the first warrant, this instance was the closest the ICC has come to arresting Bashir and taking a critical step towards justice for his victims.
While debates and commentary on the law, politics, and state responsibility carry on, the fact remains that 12 years after the start of atrocities that have claimed the lives of so many Darfuris—and continue to do so—justice has again been denied.
Bashir’s evasion of arrest highlights just how non-cooperative the AU is with the ICC, even though more than two-thirds of AU member states are parties to the Rome Statute. There has been longstanding tension between the ICC and many African nations who strongly criticize the court, saying it unfairly and selectively targets Africans.
At first glance one can see where this impression comes from – it is true that all nine of the ICC’s situation investigations involve crimes allegedly committed in African countries. But those grumbling about selective prosecution tend to be African political elites, and not the hundreds of thousands of victims who are themselves African, whose hopes are revived by international attention on their plight for justice.
The fact is that in four situations, the country’s themselves referred the cases to the court, and in two others the situation was referred by the UN Security Council. The current chief prosecutor of the ICC is herself an African from Gambia.
This isn’t an issue of an unfair ICC, but an issue of African leaders protecting fellow leaders. Bashir has evaded arrest while travelling, including to Kenya, Chad, DRC, Djibouti, and Nigeria, all of which are ICC member states. Without international action, there will be no end to this impunity.
Much pushback is coming from civil society groups across the African continent working to support the ICC and secure the arrest of Bashir. The swift mobilization against Bashir’s visits by civil society groups, in Kenya and Nigeria for example, shows their effectiveness in preventing his free movement and making future visits less likely.
Yet, inaction remains the problem at the heart of the matter.
After years of stagnation in the investigation and arrest of Bashir, ICC Chief Prosecutor Fatou Bensouda shelved the case in December, citing lack of support from the Security Council as a main reason.
The South African government has announced it is appealing the High Court ruling that it was obligated to detain Bashir and that its failure to do so was unconstitutional. As this begins to unfold, the real test will be the message that will be conveyed to the world if there are no ramifications for aiding in the escape of a leader wanted for genocide, and if the international community lets that stand.
South Africa’s legacy as a respecter of human rights and rule of law is teetering on the edge. The same can be said for the UN Security Council. The impact of this precedent will not only affect Darfuris, but the millions of justice-deserving victims around the world.