For a few hours, the future of a country of 38 million people may have hinged on the decision of a South African judge.
Omar al-Bashir, the Sudanese president who is currently under indictment by the International Criminal Court for alleged genocide and crimes against humanity, was in South Africa for an African Union Summit on June 15. South Africa is a signatory to the Rome Statute, meaning it has submitted to the ICC’s jurisdiction and committed itself to executing the court’s arrest warrants.
Bashir’s visit — like his past appearances in ICC member states since his 2008 indictment — both flouted the court’s authority and put South Africa in a vexing diplomatic and legal bind.
If South Africa arrested Bashir, it would uphold principles of international justice while violating diplomatic protocol, detaining a visiting head of state and inserting its legal system into the affairs of perhaps the most violent and complicated country in the continent.
If it didn’t arrest Bashir, it would flout the order of the ICC, weakening the court and further establishing the legal impunity of a dictator responsible for millions of deaths during brutal counter-insurgency campaigns in Darfur, the Nuba Mountains, Blue Nile, and present-day South Sudan.
This week, South Africa’s judicial system attempted to detain Bashir, only for the country’s political leadership to allow the Sudanese leader to leave the country just hours after a crucial court appearance. In a single stroke, this disastrous middle path somehow weakened the ICC and domestic rule of law, empowered one of Africa’s absolute worst leaders, and reportedly endangered South African peacekeepers deployed in Sudan.
On Sunday, the high court in Pretoria issued an order barring Bashir from leaving the country, in response to a number of civil society organizations that had petitioned the court to execute the ICC arrest warrant during Bashir’s visit.
Though Bashir was never in custody, this was the closest any country had ever come to acting on the ICC warrant. When Bashir appeared in court the next day for a preliminary hearing on the order to remain in South Africa, it was the greatest degree of legal accountability the long-serving dictator had ever faced for his government’s actions.
The hearing was a shocking and even surreal development. Bashir had visited numerous countries since the 2008 indictment and arrest warrant, including Kenya and Chad, which are both Rome Statute signatories. The ICC essentially suspended its Darfur file in late 2014, and the indictment had taken on a kind of zombie existence, remaining in effect on paper even as the actual behavior of ICC states proved that they weren’t willing to execute a warrant on such a powerful and controversial figure.
South Africa was no exception, and president Jacob Zuma and the ruling African National Congress clearly had no intention of following the ICC order, which would have invited the diplomatic crisis that comes along with detaining a recognized head of state for crimes allegedly committed far from the country’s borders. REUTERS/Mohamed Nureldin Abdallah
Bashir even appearing in a courtroom was historic on its own. It sets a precedent that all but guarantees Bashir can’t travel to an ICC member state — outside of the Persian Gulf states whose loans and largesse helps fund the Sudanese regime, along with the small handful of countries to which Khartoum sells oil — without the very real possibility of detainment or harassment. And it proved that the ICC dock is slightly more than just a bureaucrat’s wish-list. The court ordered the arrest of a sitting head of a state, and a real-world legal process unfolded as a result — however delayed or incremental it turned out to be.
What happened next was no less important. After the hearing, Bashir’s motorcade immediately proceeded to a nearby South African Air Force base, where Bashir’s delegation to the AU summit promptly boarded the Sudanese president jet and left the country.
It didn’t seem to matter that South Africa’s judicial system had barred Bashir from leaving. The South African military and political leadership facilitated his departure in open defiance of a domestic legal injunction.
The implications of the episode are troubling for South Africa, Sudan, and the future of the ICC.
In trying to acknowledge the ICC warrant, South Africa ended up exposing the weakness of its judiciary, which had its explicit orders ignored. South African peacekeepers deployed in western Sudan were also reportedly surrounded by Sudanese troops as Bashir’s status remained in limbo, raising a precedent for regimes using the threat of violent coercion to weaken the ICC’s reach.
In Sudan, the ordeal may only deepen Bashir’s ever-tenuous hold on power, rallying support for the regime and mobilizing nationalistic sentiment among the government’s supporters. Bashir’s re-“election” with 94% of the vote in April, along with his successful defiance of the ICC indictment this week, makes it less likely that figures within the military or Sudan’s ruling National Congress Party will attempt to depose him. Within Sudan, and inside the ruling clique, the president’s hand has likely been strengthened.
For the ICC and supporters of some kind of robust international justice mechanism, it is likely dispiriting that this brief episode will be the closest the court will ever come to executing a warrant that has become a drawn-out test of the court’s actual authority. It can’t be encouraging that a quickly-disregarded hearing is the closest Bashir will ever come to answering for his regime’s decades of alleged crimes.
The ICC was supposed to make the entire world directly accountable to international humanitarian law. The Bashir incident shows how that’s played out in reality, with a South African court potentially gutting its own authority and empowering an autocratic regime, all in a vain attempt to exercise power over another country’s internal affairs.
Bashir’s ordeal was a historic high-point for the court’s most troublesome case. But it’s a reminder of the inherent weaknesses and dangers of the current system of international justice. And it demonstrates why justice for Bashir’s millions of victims will probably never be meted out in a courtroom.