The United Nations reckons that some 300,000 people have been killed and 2 million displaced since 2003 when conflict began over the Darfur region in Sudan. That battle pits the Sudanese Army and militias aligned with them against non-Arab rebels who claimed that they have been discriminated against by the Khartoum government. As the numbers of casualties makes plain, it has been a bloody battle.
The International Criminal Court, a tribunal established in 2002 to investigate genocide, crimes against humanity and war crimes, opened an investigation against Sudanese President Omar al-Bashir; in 2009 and again in 2010 it indicted him for alleged war crimes, crimes against humanity and genocide. He and his government reject all the accusations, deny any official involvement in the bloodshed and counter that the death toll is “only” 10,000.
All signatories to the ICC are obligated to arrest and hand over suspects charged with indictments. In theory, then, al-Bashir should have been detained when he arrived in South Africa earlier this month for a summit of the African Union (AU). Instead, he was afforded all the honors of a visiting head of state, and was then spirited out of the country just ahead of a South African court ruling that demanded his arrest. Since he left from a military base, it can be assumed that the South African government gave its blessing to his departure, putting support for a fellow African leader ahead of its international obligations to the ICC.
Officially, the government of South African President Jacob Zuma claims that it was merely respecting a 2013 AU resolution that stated that no sitting African head of state should be tried before the ICC. Reportedly the ruling African National Congress party informed the Sudan government that al-Bashir would not be detained if he attended the summit. And in almost all cases, government officials travel with grants of immunity in the jurisdictions they visit. This immunity allows them to do their business without fear of prosecution, which can frequently reflect political rather than legal imperatives.
The problem is that the ICC was set up to override immunity. The tribunal was designed to penetrate sovereign immunity, asserting that some crimes — genocide, crimes against humanity and war crimes — cannot be justified. The founders of the court reasoned that the belief that they are untouchable for official acts allows heads of state to commit atrocities; lift that immunity and they will curb their murderous behavior.
That logic convinced 123 counties to become states parties to the court, and another 31 have signed but not ratified the treaty. (Among the 41 holdouts are such countries as China and India; disappointingly, the United States signed the treaty but then announced that it would not become a states party and therefore has no legal obligation to the court.)
Since the court began its work in 2002, it has launched nine cases in eight countries. All of them have been in Africa, however, leading to charges by African leaders that the tribunal is biased and operates according to a double standard. This belief prompted the 2013 AU resolution and provided a basis for the South African government’s refusal to hold al-Bashir.
That al-Bashir was re-elected earlier this year with 94 percent of the vote — the opposition boycotted the election — gave South Africa one more reason to ignore the ICC indictment. (Pride was also a factor: South Africa wanted a successful summit. That meant that it would be as inclusive and orderly as possible.) In a statement after his departure, the ANC national executive explained that African countries “continue to unjustifiably bear the brunt of the decisions of the ICC, with Sudan being the latest example.”
The South African decision was not ordained. Historically, South Africa has pushed for accountability among government leaders; this has been a powerful component of the legacy of Nelson Mandela, a moral leader who understood the African unity meant nothing when a common front was merely a smokescreen for crimes of appalling scale. Leadership is no license to steal or kill, and brotherhood is no excuse to turn a blind eye to abuse.
Some in South Africa still appreciate that moral force. The court that ruled in favor of his detention clearly understood the nature of the obligations the country had undertaken when signing up to the ICC. The opposition party argued that the government’s failure to stop al-Bashir from leaving is in fact a constitutional crisis since the executive has effectively ignored the judiciary. Moreover, it insists that the government had no authority to promise al-Bashir he would not be arrested if he visited South Africa.
South Africa is not the only country to turn its back on the ICC mandates. Al-Bashir has visited a number of countries since he was indicted and seems to relish opportunities to undermine the tribunal’s authority. South Africa’s readiness to join the governments that reject the ICC’s mandate deprives both it and the court of credibility.