Gambling with impunity: al-Bashir, South Africa & the ICC

By Beatrice Tesconi:

President Omar Hassan al-Bashir leaving plane in April, 2013. Photo: Abayomi Azikiwe (published under fair use policy for intellectual non-commercial purposes)
President Omar Hassan al-Bashir leaving plane in April, 2013, on a visit to South Sudan. Photo: Abayomi Azikiwe (published under fair use policy for intellectual non-commercial purposes)

News that Sudanese President Omar al-Bashir’s jet had taken off from a military base in Pretoria last Monday sparked two starkly different reactions. Upon his arrival in Khartoum, Bashir received a hero’s welcome from hundreds of supporters cheering his safe return home in defiance of a South African court order barring his departure. On the other hand, global civil society and human rights advocates were left in dismay at yet another missed opportunity to bring an alleged perpetrator of grave international crimes to justice. But both sides found themselves agreeing on one thing – the credibility of the International Criminal Court (ICC) had been dealt a decisive blow.

The decision to attend the African Union (AU) summit held in Johannesburg last Saturday was just Bashir’s latest provocation to the Hague-based court, which has been struggling to bring him to trial since 2009. Following a United Nations Security Council (UNSC) referral in 2005, the ICC opened a formal investigation over the conflict in Darfur, which culminated with the issuing of two arrest warrants in 2009 and 2010 for the 71 year-old dictator on charges of war crimes, crimes against humanity and genocide.

As a signatory of the Rome Statute, the founding treaty of the ICC and where the Court’s jurisdictional parameters are laid out, South Africa had an obligation to arrest him. Yet the South African government still promised Bashir and all other African leaders attending the summit full immunity on the basis of a general principle of international law, despite the fact that Article 27 of the Rome Statute waives such immunity ratione personae that is usually granted to heads-of-states in international law.

Things took an unexpected turn when, on Sunday, a South African human rights group managed to secure an interim order from South Africa’s High Court barring Bashir from leaving the country. The South African government argued against the order on the grounds that it had granted immunity to the delegates at the conference. The next day the government let Bashir board his flight home at a military airfield near Pretoria, just as the High Court was holding a hearing that would have ordered the Sudanese leader to be detained and turned over to the ICC. South Africa’s leading party, the African National Congress (ANC), did not hesitate to slam the ICC over its attempt to arrest Bashir, calling it “no longer useful for the purposes for which it was intended”. Yesterday the government denied that there had been a plot to let Bashir leave.

“Securitizing” the Court

Whether or not one agrees with the ANC’s statement that – the ICC “is no longer useful” – it is still reflective of what has become an increasingly hostile climate between the Court and its African member states. The AU has repeatedly accused the ICC of being a tool of Western imperialism and of unfairly targeting the African continent, since many perpetrators in the Middle East and the Western world are left untouched. With all nine of the official investigations that the Court is currently pursuing taking place in Africa, the AU criticism is not completely unwarranted. Yet the Court’s focus on Africa does not stem from any anti-African sentiment, but from the political realities and limitations of its jurisdiction.

The ICC Prosecutor can only open an investigation into situations that occur within the territory of one of its member states, by means of a state’s self-referral or of its proprio motu powers, or if the suspect is a national of a state party. However, an investigation can also be initiated within the boundaries of a non-member state if the situation is referred to the ICC by the UNSC, which is what happened in the case of Sudan.

Furthermore, on the basis of the principle of complementarity, the ICC should be seen as a court of last resort, meaning that it will only intervene if it finds a state to be “unable or unwilling” to investigate and/or prosecute. Therefore, the Court cannot automatically usurp jurisdiction from states, and states themselves can avoid the intervention of the ICC if they are able to conduct a genuine investigation and prosecution.

Given the incidence of conflict globally and the fact that the African continent holds the largest regional group of ICC-member states (34 out of the 123 state parties), the ICC focus on Africa should not come as much of a surprise. Many countries in the Middle East did not grant the ICC jurisdiction, and major powers such as the US have failed to ratify the Rome Statute. It is also worth noting that, Sudan being one of the few exceptions to this, the majority of the investigations that are currently taking place in the African continent have been at the behest of the states, which have requested the intervention of the Court through self-referrals.

But the fact that the investigation in Darfur was initiated after a UNSC referral has led some African leaders and commentators to argue that the Court is nothing more than a tool of great power neo-colonialism. Irrespective of whether the UNSC referral was driven by political rather than humanitarian considerations, the arrest warrants issued by the ICC judges were based on concrete evidence gathered during the official investigation. Objecting to Bashir’s arrest on the basis that other alleged perpetrators in the Western world are still at large (a common argument made by the Court’s critics with reference to Bush or Blair), or that other grave situations are not being investigated due to conflicting political interests (i.e. Syria), does not excuse the fact that the victims of Darfur are being denied their fundamental right to justice and human dignity.

While certain African leaders continue to portray the Court as a threat to the sovereignty of African states, Darfurians and the other victims of mass atrocities within the continent are essentially being reduced to ‘bare life’ as their right to justice is being gambled for political considerations of pan-Africanism.

A Victory in Disguise

By choosing African solidarity over its international legal obligations, the South African government has emerged as the only loser of last weekend’s events. Letting Bashir go in defiance of its own Court order has seriously compromised South Africa’s leadership position on the continent and left a major stain on its reputation as one of the Africa’s soundest democracies.

The ANC’s discrediting of the Court should therefore be seen more as a desperate attempt to scrape legitimacy out of an essentially pyrrhic victory rather than being reflective of any truth. Calling the Court ‘obsolete’ ignores the fact that the arrest of perpetrators of grave international crimes has never been one of the purposes of the ICC, but a job delegated to states under the doctrine of universal jurisdiction. Adopting Antonio Cassese’ famous image in reference to the ad hoc tribunal in the former Yugoslavia, the ICC is nothing more than “a giant without arms and legs”, fully dependent on states as its artificial limbs. If anything, this week’s drama served to underline the need to recalibrate our expectation against the realities and limitations of the Court.

Contrary to the opinion of many of the Court’s critics, the latest development in the Bashir-ICC saga marked a significant moment in the fight against impunity, one of the official purposes of the Court. The Pretoria’s court order was in fact the first time any court has legally barred a head of state from leaving a country following a request by the ICC. This, together with the tireless efforts of South African civil society, is evidence of a slow internalization of a norm against impunity in what Kathryn Sikkink sees as an ongoing ‘justice cascade’.

Furthermore, the fact that Bashir had to sneak out of the country like a fugitive, and that the South African authorities had to come up with a range of fanciful machinations and cover stories to let him leave the country, suggests that it’s the end of business-as-usual for the Sudanese leader. The world around him is increasingly shrinking, and so is his time left as a free man.

There is no doubt that Bashir’s arrest would have marked a definitive victory for the ICC and the international criminal law project as a whole. However, framing Bashir’s escape in terms of a decisive blow to the ICC risks reinforcing the same delegitimizing rhetoric that is currently hampering the Court’s universal aspirations. Whilst the ICC might be far from perfect, it has still managed to instill a nascent culture of international accountability where impunity once prevailed, despite being such a young institution.

The future of the fight against impunity will heavily rely on its member states. Only by upholding their international legal obligations can states ensure that a norm of accountability crystallizes in international law, and that even those seemingly invincible leaders of today can become the fugitives of tomorrow. In abdicating its responsibility to Bashir’s victims in Darfur, South Africa flouted its domestic and international legal obligations, but it did not write the epitaph for the International Criminal Court. On the contrary, South African civil society and an independent judiciary have shown us that the ICC is far from dead and that a global effort to fight impunity is well underway.

Beatrice Tesconi is currently undertaking an MA in International Peace and Security at King’s College, London, after graduating from the University of York with a BA in Politics and International Relations. Her research interests are in the field of International Criminal Law, Transitional Justice and the Middle East and North African Region. Twitter: @BeaTesconi

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