Born in a more hopeful era, when citizens of the world committed to stamping out injustice and holding genocidal dictators and warlords accountable for crimes against humanity, the International Criminal Court in the Hague suffered a major blow on Monday when Sudanese President Omar al-Bashir escaped South Africa on his presidential jet, foiling yet again a six-year quest to bring him to justice.
The 71-year-old, who has ruled Sudan with an iron first for two and a half decades, stands accused by the ICC of war crimes, crimes against humanity and genocide related to the 2003 conflict in Darfur, which claimed more than 300,000 lives in a gruesome orgy of decapitation, rape and torture committed by government militias. Al-Bashir denies the charges.
So confident was al-Bashir in his impunity that he landed in Johannesburg on June 13 to attend the opening of the African Union summit and mug for the cameras, despite the fact that, as a signatory to the convention that created the ICC, South Africa is legally obliged to arrest the Sudanese president and transfer him to the Netherlands. The South African authorities did not. Instead they allowed him to leave the country on the second day of the conference, despite a judicial order calling for him to remain.
Al-Bashir’s willingness to travel to Johannesburg in spite of two international arrest warrants is an indication that not only has the ICC lost credibility, but that South Africa, once a beacon for justice and human rights on the continent, has bowed to political expediency. “This marks a moment of historic failure,” says Eric Reeves, a professor and a Sudan expert at Smith College in the U.S., and author of A Long Day’s Dying: Critical Moments in the Darfur Genocide. “If the only body that is capable of taking on the massive, indisputable atrocities that have taken place in Darfur over the past 13 years, if that body is flouted by sheer machinations of an indicted génocidaires, who is allowed to leave a country that is a signatory to the ICC, then the court is clearly deeply troubled.”
The impasse over how to deal with the pending visit one of the world’s most wanted criminals was set in place on June 5, when South Africa’s Minister of International Affairs, Maite Nkoana-Mashabane, signed an agreement granting diplomatic immunity to delegates participating in the African Union summit, directly contravening South Africa’s responsibilities to the ICC. But once al-Bashir arrived, the South African Litigation Centre, a legal-rights group, argued before Pretoria’s high court that South Africa’s responsibilities to the ICC carried more weight. The judge agreed, ordering the police to keep al-Bashir in the country until the courts could decide if al-Bashir should be handed over to the ICC.
But even before the court came to session on Monday, June 15, al-Bashir slipped out of the country on his presidential jet. Officials at the military airport say his name was not on the flight manifest, so they could not stop the airplane’s departure. Representatives of the South African Litigation Centre are calling contempt of court, but it is unclear what the legal repercussions, if any, will be.
The ICC has no police force of its own; instead it relies on member states to carry out arrests on its behalf. Increasingly, they are failing to do so. Al-Bashir has visited at least four other ICC member states — Malawi, Kenya, Chad and Congo — in the past several years. None of them attempted to arrest him either. But South Africa should have been different, says Reeves. “The disgrace could not be greater. The world stood by South Africa at its time of need, and now South Africa sides with a génocidaire, someone we know is responsible for the deaths of many hundreds of thousands of people. It is an absolute betrayal of Nelson Mandela’s legacy.”
South Africans, however, are divided. South African President Jacob Zuma told CNN six years ago that he would not hesitate to arrest al-Bashir should he ever set foot in the country. But a recent explosion of anti-African xenophobic violence in South Africa has forced the country into a charm offensive as it struggles to undo the diplomatic damage. As the furor deepened over al-Bashir’s presence at the African Union summit on Saturday, Zuma’s African National Congress party executive committee said in a statement that “the International Criminal Court is no longer useful for the purposes for which it was intended — being a court of last resort for the prosecution of crimes against humanity.” Instead, the statement argued, the court was biased against African leaders, of which al-Bashir’s Sudan was only “the latest example.”
The case is also the latest example of the ICC’s declining authority around the world. The U.S. is not a signatory, and early adopters Uganda, Ethiopia, Kenya and Rwanda have vocally dismissed its efforts as “selective” and “racist.” In 2009 the African Union vowed to stop cooperating with the court, leading to today’s impasse in South Africa.
As al-Bashir landed in Khartoum to the cheers of hundreds of supporters, his Foreign Minister, Ibrahim Ghandour, lashed out at the ICC and the international community for disrupting the summit. “The participation could have been normal and without a fuss, but Africa’s enemies, Sudan’s enemies and the enemies of peace-loving countries wanted to try and turn it into a drama, to prevent the President from important participations.” The average African cares less about the summit than justice, argued South African columnist Simon Allison in the online newspaper the Daily Maverick. “To the ordinary African, the ICC is one of the few sources of justice available for crimes against humanity, war crimes and genocide. It’s hard to escape the feeling that international justice in Africa has just received a mortal blow; it’s even harder to deal with the realisation that South Africa delivered it.”
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