On Sunday, as South Africa’s highest court weighed whether to obey the International Criminal Court (ICC) and arrest Omar al-Bashir on charges of genocide, the Sudanese president was on stage at the African Union summit in Johannesburg, smiling and shaking hands as he positioned himself front and center for the group photo. By the time an arrest warrant had been issued on Monday, Bashir had quietly slipped out of the country – his private jet apparently cleared for takeoff by the South African government of Jacob Zuma – narrowly escaping yet another episode in the ICC’s six-year struggle to bring him to justice.
On the surface, Bashir’s escape was a demoralizing defeat for the ICC, which had ordered South Africa, as a signatory to the Rome Statue that set up the court, to detain Bashir and hand him over to The Hague. Zuma’s government refused, arguing that African Union (AU) rules protected visiting heads of states from arrest or prosecution during summits. It held that line even after South Africa’s own High Court issued a hold on Bashir’s exit from the country, which was apparently ignored by the military airport Bashir's plane departed from on Monday. An investigation into the matter has already been ordered.
“It is a really sad day for victims in Darfur, and for humanity and international justice,” said Ahmed Hussain Adam, a visiting fellow at Cornell University’s Institute for African Development, who is writing a book on the post-genocide peace process in Darfur. “Everyone in Africa looks up to South Africa as a symbol for freedom, democracy and rule of law. Zuma has betrayed all of that,” he said.
On the one hand, the showdown in South Africa demonstrated the limits of the ICC, which has successfully prosecuted only a handful of major cases since its inception in 2002. In that short history, the court has been dogged by a lack of coercive tools to compel governments to follow its orders. Cases such as the prosecution of Uhuru Kenyatta, Kenya's former president who was accused of crimes against humanity stemming from post-election violence in 2007, have collapsed simply because the targeted government refused to cooperate by turning over critical evidence.
But the ICC’s failure to apprehend Bashir also reflects the burgeoning tensions among its African member states, who resent that an overwhelming majority of the court's indictments have targeted Africans. Though the ICC points out that most of these cases were brought by African governments themselves, noting that it only pursues prosecution when the local judiciary is deemed unwilling or unable to do so, there is no question the court's credibility has faded.
As a result, the continent's leaders, including Zuma, have sought to distance themselves from the court's operations and protect their own from what they consider an almost imperialist entity. As Zuma's ruling African National Congress party commented in a statement on Sunday, Africa and Eastern Europe “continue to unjustifiably bear the brunt of the decisions of the ICC." Last July, AU leaders even voted to grant themselves immunity against international prosecution, a decision they presented as an act of pan-African solidarity but which was widely decried by civil society groups.
This trend seems to have egged on Bashir, who waved his cane triumphantly as stepped off his plane in the Sudanese capital of Khartoum on Monday, greeted by hordes of cheering supporters. In comments to the press shortly afterward, Foreign Minister Ibrahim Ghandour curtly dismissed the controversy as little more than "media fanfare” that attempted to “disturb our harmony.”
But advocates of the court had a different spin, arguing that Bashir has taken a warning shot.
William R. Pace, the convenor of the Coalition for the ICC, a U.S.-based NGO that supports the court, said Bashir’s narrow escape from South Africa was actually a victory. Thanks to civil society groups like the Southern African Center for Litigation, which brought the matter before the High Court, Bashir was forced to sneak out of the country out of concerns the "South African courts and legal system would enforce their national laws, constitution and treaty obligations even against the pressure of their political leadership.”
Many legal scholars agreed with that assessment, noting that issuing a warrant for the arrest of a current head of state set a bold precedent. At the very least, it could make it much more difficult for Bashir to travel freely to the other 122 Rome Statute countries with impunity, said Jennifer Trahan, an expert on the ICC and a professor at New York University's Center for Global Affairs. “South Africa has courageously paved the way in taking the Rome Statute seriously,” she said. “How Bashir ultimately ends up in The Hague is still to be determined, but this is tremendous progress.”
One possibility raised by the court’s backers would be for the United Nations Security Council to deem South Africa to be in “non-compliance” with its obligations under the Rome Statute. Because the Security Council referred the case to the ICC, legal experts argue there are mechanisms in place to punish the Zuma government for shirking its duties, though they have not been used before.
Experts said that despite Bashir's bravado, it isn’t yet clear how African governments will respond to a domestic African judiciary siding forcefully with the ICC – at a summit of the African Union, no less. The incident could help deflate the pan-Africanist rhetoric employed by many AU leaders in railing against the court, said Ahmed Hussain Adam, the Cornell fellow. “These leaders play up this issue that the ICC is an imperialist tool, they play up this issue of pan-Africanism,” said Adam. “But all they are doing is shielding Bashir from justice.”