South Africa and Omar al Bashir: Death Knell of Global Justice or Ambiguous Reaffirmation of the Responsibility to Prosecute?

A slightly different version of this post can be found here.

A remarkable scene played out in South Africa on 14 and 15 June. Over the course of two days global and regional geopolitics were pitted against international justice norms as a wanted war criminal – President Omar al Bashir of Sudan – defiantly came to the country to attend an African Union summit and stealthily fled ignominiously in fear of being arrested.

The UN Security Council referred the case of Darfur, where his government has been accused of committing and supporting war crimes, crimes against humanity, and genocide, to the International Criminal Court in 2005. An arrest warrant was issued by the ICC in 2009. While African countries were some of the strongest supporters of the ICC from the beginning, and there are 34 African states which are members of the court, the case against Bashir has played out against the backdrop of accusations of bias on the part of the ICC against Africa and charges of neo-colonialism. The African Union has asked (to no avail) the Security Council to suspend the case against Bashir (as well as against the President and Deputy President of Kenya) and called on African states not to cooperate with the ICC. Some African leaders have called for a mass withdrawal from the Rome Statute of the International Criminal Court.

Yet, while various statements from the AU appear to project a unanimous antipathy to the ICC on the part of African States, the reality is more complicated. Indeed, South Africa has asserted a number of times that it would arrest Bashir if he came to South Africa. But because of a number of regional and global dynamics, South Africa, like many other African countries, is in a difficult position with a contradictory relationship to the ICC and human rights more generally and is pulled in multiple directions simultaneously. Two issues, in particular, are most relevant here:

First, there has been a sea-change globally with regard to the relationship between human rights and state sovereignty; it has been recognised that States cannot do whatever they want to their people and that sovereignty entails responsibilities toward citizens. The AU Constitutive Act has specifically recognised the right of the AU to intervene when states commit mass atrocities against their people. Yet, many leaders are having a hard time accepting that they and their colleagues in other countries are not immune to charges of mass atrocities.

Second, (many) African states are torn between supporting human rights and pan-African solidarity. When faced with supporting global human rights norms or showing support for a fellow African leader, two aspects of contemporary African politics come into conflict.

In the current situation, South Africa, even though it has repeatedly stated that it would arrest Bashir, appears to have chosen African solidarity over its global human rights obligations.

On 14 June the South Gauteng High Court, in response to an application by the South African Litigation Centre, ordered the government to temporarily prevent Bashir from leaving South Africa until a full hearing could be held on the request to arrest Bashir and send him to The Hague. On 15 June, the court held a brief hearing and then adjourned for an hour at the request of government lawyers who argued they needed more time to review documents. Minutes later, Bashir was allowed to leave on his plane, which had been moved from a civilian airport to a military base. Subsequently the court, before being informed of Bashir’s departure, called the government’s actions unconstitutional and ordered the government to arrest Bashir.

What are the implications of what appears to be a blatant disregard for the rule of law and international legal obligations? First, the fact that Bashir was forced to surreptitiously leave the AU summit early demonstrates that the ICC does, in fact, have an effect. Bashir has been delegitimised and is on the run like a common criminal. He had twice previously refrained from coming to South Africa because of fear of arrest. This time it appears that he decided to try to test the ideational power of the ICC. The South African Government tried to endow Bashir – and all others leaders attending the AU summit – with immunity. It argued that this is based on general principles of international law, but an exception to head of state immunity has developed in cases of the commission of international crimes. Further, the Rome Statute clearly indicates that nobody is immune to prosecution. Although Sudan is not party to the Rome Statute, the Security Council referral gave the ICC jurisdiction and removed Bashir’s immunity in this situation.

Second, and paradoxically, it demonstrates the weakness of the ICC. The ICC relies on states to enforce its decisions. All members of the ICC are required to comply with arrest orders, and in the case of Security Council referrals, all states, regardless of whether or not they have ratified the Rome Statute, are obligated to cooperate with ICC arrest warrants. Several other governments have ignored these obligations.

In some ways, the refusal of South Africa to comply with the court’s order is particularly worrying. Given its history of apartheid, it was expected to be particularly supportive of, and sensitive to, human rights. For the South African government to now ignore both its own courts and its obligations under international law by allowing Bashir to leave the country, is shocking and distressing. In the context of other actions taken by African States Parties in defiance of their obligations under the Rome Statute this further raises significant questions about state commitment to the ICC. The ruling African National congress asserted that the ‘ICC is no longer useful for the purposes for which it was intended.’ And, in the court hearing, a judge raised the question of whether South Africa, by defying the ICC, would be obliged to withdraw from the Rome Statute. Such an eventuality would indeed be damaging to the ICC.

Yet, and third, even though there have been attempts over the past few years to get the AU to call for mass withdrawal, this has not happened. This is just one of a number of a number of situations where the ICC has faced such challenges. But the fact that his plane had to move airports and he had to leave surreptitiously raises serious questions about his actual freedom of movement – as does the fact that the South African government had to go through so many machinations to allow him to leave, including asserting, as a government lawyer did during the court hearing, that he might be shopping rather than in the process of leaving the country.

When governments are required to come up with such fanciful and absurd cover stories, this is evidence that they know they are doing something wrong and shameful. And such shame is partly what drives compliance with human rights norms. Bashir’s freedom of movement is far from complete. In 2013, Bashir was forced to cancel a planned visit to New York to address the UN General Assembly. That visit would have been a direct challenge to the ICC and would have made the US very uncomfortable. In South Africa, Bashir’s challenge to the ICC has been only minimally successful, given that he had to sneak out of the country.

Fourth, and most fundamentally, such moments of drama and apparent setbacks are to be expected. The norm against impunity and the responsibility to prosecute are relatively new. New international norms, especially those which conflict with other fundamental international principles and state identities, do not appear in the world fully formed and implemented. There will likely be many years before the norm against impunity is enforced in as robust a manner as one might wish.

The arrest of Bashir today would have been a major turning point in the fight against impunity. Yet, the fact that the South Africa court ordered the government to arrest Bashir is, in itself, a significant moment. He had to flee in the face of an expected court order to arrest him and cannot come to South Africa again without facing arrest. And there have been other examples of former heads of state being held accountable through various international mechanisms – Charles Taylor, Laurent Gbagbo, Hissène Habré, Slobodan Milosevic. Other investigations are ongoing. Each and every one of these cases is significant, and South Africa’s actions today do not take away from their significance. South Africa’s actions today were disappointing but not entirely unexpected in the broader context of norm development, implementation and contestation. The ICC will live to fight another day, and Bashir’s freedom of movement has decreased just a little bit more.

African solidarity won out today over anti-impunity, but it was a pyrrhic victory. South Africa lost a little bit of its international standing, while its courts have upheld the rule of law and the responsibility to prosecute. The former is unfortunate, while the latter is one more link in the chain of international justice.

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