Commentary

Bashir's Escape from South Africa Dents ICC Legitimacy

Middle East In Focus

Middle East Policy Council

Regional observers have been closely following the fallout from last week’s high-profile rebuff of the International Criminal Court by the South African government, which was hosting a meeting of regional leaders in Johannesburg. Among them was Sudanese President Omar Hassan Al Bashir, who has an outstanding arrest warrant from the ICC. Since his unencumbered return to Sudan following the meeting, many have expressed frustration at South Africa, the Court’s lack of legitimacy, and what this episode might mean for the ability of international criminal justice to address some of the world’s most contentious and tragic developments.

The details surrounding Bashir’s crimes are well laid out in a recent Khaleej Times staff report which points out that “Omar Al Bashir is the only sitting president with an outstanding arrest warrant from the International Criminal Court. He is accused of being the mastermind of the genocide in Darfur where Sudanese forces and government-sponsored militias carried out a campaign of attacks against innocent civilians. On March 4, 2009, the ICC issued an arrest warrant against Bashir for seven counts of crimes against humanity and war crimes. On July 12, 2010 the ICC issued an additional warrant adding 3 counts of genocide for the ethnic cleansing of the Fur, Masalit, and Zaghawa tribes. Undeterred by his arrest warrants, Bashir continues his reign and has travelled freely to other countries. At least 1.4 million Darfuris remain displaced in addition to some 280,000 living in refugee camps in Chad according to the UN. Other calculations and violence in early 2013 suggest the figures are even higher. Another million have been displaced or severely affected by violence in South Kordofan and Blue Nile.”

Given the notoriety of the case and the expectations that Bashir might finally be apprehended and brought before the Court, it is not surprising that, as this Iran Daily article notes, the South African government has been the target of stinging criticism both domestically and internationally: “A South African court has given the government seven days to explain the reason behind defying an order to keep Sudanese President Omar al-Bashir in the country…. The South African government said in a statement it would probe the conditions in which Bashir took off from a military base in Pretoria, adding that they will ‘also comply with the court order relating to submission of an affidavit outlining these circumstances.’ The South African government, which is a signatory to the ICC, has been criticized for failure to arrest Bashir, who has mainly chosen countries that have not joined the ICC as his travel destinations since his indictment. UN Secretary General Ban Ki-moon has said that Bashir’s arrest warrant was ‘a matter I take extremely seriously and the authority of the ICC must be respected.’”

But the Dawn’s Mahir Ali suggests that criticism of South Africa for letting Bashir go is unfair, as long as three out of the five UNSC members are not subject to its jurisdiction: “South Africa has since then been roundly criticized for its laxity in this regard by the ICC, the European Union (EU) and the United Nations (UN), not to mention NGOs such as Human Rights Watch for undermining the ICC — to which South Africa, but not Sudan, is a signatory…. The South African government’s refusal to prosecute an ICC warrant has been criticized as a particularly egregious snub, given its exceptional status in the regional context as one country where the rule of law is deemed to operate. It would be inaccurate to assume, however, that African skepticism alone is instrumental in undermining the ICC. It is difficult to take it seriously or consider it impartial as long as the world’s leading powers are not subject to its jurisdiction.”

For The Peninsula’s editorial staff, however, Bashir’s “escape” is a reflection of the lack of legitimacy of the Court on the continent, rather than South Africa’s inability to bring him to justice: “The debate about South Africa’s failure to execute the ICC order will revolve around one issue — the legitimacy and relevance of ICC. African countries have accused this international court of selective application of justice, which is true. All eight of the investigations the ICC has opened so far have involved African nations, drawing criticism of unfair treatment. Even if it’s agreed that all these cases involve war crimes and gross human rights violations, for which the culprits need to be punished, there are cases in other parts of the world which require the ICC intervention.” 

Judging by Nesrine Malik’s op-ed for The Hindu, there seems to be enough blame to pass around for everyone involved, and all seem to have something to lose from last week’s debacle. But the ICC has emerged as biggest loser of all of them: “The whole episode was an embarrassment for everyone: the South African judiciary and executive for being out of step, Mr. Bashir for not being able to step out of his own country to sit among other Africans without being jittered by fear of arrest, and the ICC, for the snub it has received. Mr. Bashir has come to represent the confusion of international law over crimes perpetrated by sitting heads of government, and the merits (or lack thereof) of the arrest warrant cannot be discussed without raising the ‘African bias’ point. Mr. Bashir has not escaped justice because South Africa was weak, nor did he get away because people do not believe that he is responsible for presiding over a government that has savaged the Sudanese people with impunity. He got away because without universal jurisdiction, there can be no individual enforcement.”

Reflecting on last week’s events, in one of its editorial, the Saudi Gazette staff expressed its fear that the Court’s weakness does not bode well for the prospects of a fair and independent judicial process dealing with alleged war crimes committed by Israel during last year’s Gaza incursion: “In the Arab world, there has been much enthusiasm for the court in the wake of Palestine’s admission in April as a state member. The move opens the possibility for action against Israel for war crimes, even though the Israelis, along with the Americans have not recognized the court. But the ICC is not yet the truly international body to which accusations of crimes in war, genocide and major human rights’ violations can be referred…. [I]t has no teeth of its own. It relies on being lent a pair of judicial dentures by the Security Council whose permanent members, particularly Russia and China, all too often refuse... the court has yet to inspire widespread confidence.”


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