South Africa just let the dictator of Sudan fly home — that's bad news for the International Criminal Court.
- By David BoscoDavid Bosco is an associate professor at Indiana University's School of Global and International Studies. He is the author of books on the U.N. Security Council and the International Criminal Court, and is at work on a new book about governance of the oceans.
When Sudanese President Omar al-Bashir’s flight from South Africa landed in Khartoum on Monday, he was greeted as a conquering hero. He had struck a blow not against a foreign nation, but against what he and his supporters regard as the biased International Criminal Court, which in 2009 issued a warrant for Bashir’s arrest. On Sunday, Bashir hobnobbed with fellow heads of state at an African Union summit in Johannesburg before jetting back to the safety of his capital the next day.
His short visit was not without drama. On Sunday, a South African human rights group secured a court order requiring that Bashir not leave the country. But by the time the High Court in Pretoria confirmed the following day that the government had an obligation to arrest Sudan’s leader, Bashir had already made it to a military airfield and boarded his flight home. The South African government, it seems, had ensured Bashir safe passage. In response, the High Court and several opposition politicians accused the government of flouting the law to protect Bashir, with South African judge Dunstan Mlambo slamming the government for behavior “inconsistent with the constitution of the Republic of South Africa.”
There are two ways of interpreting Bashir’s sojourn to South Africa. In one sense, it is little more than a continuation of a longstanding dynamic between African leaders and the ICC. For years now, Bashir has played a cat-and-mouse game with international justice, visiting a range of mostly African and Arab states. (In 2011, Beijing also rolled out the red carpet for Bashir.) ICC member states, including Chad, Kenya, and the Democratic Republic of Congo, have been among his destinations. The ICC’s statute requires member states to arrest indictees on their territory, but these states have decided they don’t need to do so. There is no longer anything shocking about an African ICC member state declining to arrest Bashir.
At the root of that resistance is a sentiment that the court has unfairly targeted African states while sparing the rest of the world. Several African leaders and commentators have described the ICC as a neocolonialist institution that has been persecuting Africans. In legal terms, the African Union’s position is that its members have preexisting obligations to respect each other’s sovereignty and the immunity of other heads of state. In its statement on Bashir, South Africa’s ruling African National Congress echoed the rhetoric of skeptics within the AU, dismissing the court as “no longer useful for the purposes for which it was intended.”
If there’s little novel about Bashir’s impunity, the ICC can take some solace in the South African high court’s decision on the government’s legal obligations. “I think that what happened over the past couple of days and in particular today, demonstrates that an ICC warrant of arrest actually means something and clearly the court in South Africa took that view,” ICC deputy prosecutor James Stewart told Reuters.
Bashir’s predicament may even be having a mild deterrent effect. For a head of state, his situation is hardly enviable, after all. His every cross-border trip requires negotiations and assurances that he will not be whisked away to The Hague. Whole swaths of the world are off limits to him. He won’t be visiting Europe, the United States, or Latin America again. Bashir may enjoy immunity, but his complicated peregrinations are a regular reminder of the hassles inherent in defying the ICC.
That’s the optimistic take. But a gloomier view is more persuasive. South Africa is not Uganda, Chad, or the DRC. It is a regional power with diplomatic influence throughout the continent and beyond. And the ICC has usually seen it as an ally in its troubled relations with other parts of the continent. South Africa has, in the past, sought to temper the anti-ICC sentiment of other African leaders. “South Africa was one of the strongest supporters of the court and a leading founding member,” ICC prosecutor Fatou Bensouda told the New York Times.
Several factors may have made the government of South African President Jacob Zuma willing to provoke the wrath of ICC supporters and defy a national court order. The fact that the Johannesburg confab was an AU summit no doubt impacted South Africa’s calculations. The AU has been a hotbed of ICC criticism, and South Africa would have created an acute diplomatic incident by either disinviting Bashir or detaining him. The current AU chairman, Zimbabwean President Robert Mugabe, has used his position to lob invective at the ICC, in February calling on African states to boycott the court and set up their own regional alternative.
More broadly, it has become clear that ICC states face few consequences for stiffing the court. When the ICC has complained to the U.N. Security Council about failures to arrest Bashir or other indictees, the council has done nothing. There’s also little evidence that states’ relationships with major Western nations suffer when they scorn the court. The United States urged South Africa to arrest Bashir but has not even hinted at any bilateral consequences for failing to do so. Perhaps as important as this diplomatic apathy, the ICC suffered an embarrassing defeat last year when the case against Kenya’s president, Uhuru Kenyatta, collapsed. The ICC claimed that Kenyan authorities undermined the case by intimidating witnesses and withholding crucial evidence, but Kenya has not been sanctioned or even widely criticized for its behavior.
These signs that the court’s writ may be weakening rather than strengthening are dangerous for an institution that has little clout and relies on states for access, evidence, and enforcement. The ICC’s chances of being effective rest heavily on its moral authority and aura of legitimacy. South Africa’s behavior is a sign that those intangibles are having trouble keeping pace with harder diplomatic realities.
Photo credit: Ashraf Shazly/AFP