Wednesday, June 17, 2015, The Globe and Mail
Move over John Le Carré. Your fanciful heroes can’t compete with real-world escapees from justice. On Monday, Sudanese President Omar al-Bashir, twice indicted by the International Criminal Court for genocide in the ethnic cleansing of 300,000 of his country’s non-Arab citizens and the displacement of millions of others, fled an African Union summit meeting being held in Johannesburg. He left in secret from a small military airfield just hours before South Africa’s highest court was to rule on whether he should be arrested and delivered to The Hague.
South Africa is a member state of the ICC, meaning that if an individual who has been indicted by the tribunal arrives on its territory, that country is legally obliged to effect an arrest.
Anticipating this knotty problem, the South African government pre-emptively granted immunity to all summit delegates. But a national human-rights organization thought otherwise. It appealed to the country’s High Court urging compliance with South Africa’s international obligation to arrest Mr. al-Bashir. The court ordered the government to detain the accused while it considered the case.
In the early hours of Monday, just before the judgment was released, the Sudanese President quietly left South Africa, with the certain assistance of the government. The High Court angrily ordered his arrest and demanded an explanation. “The circumstances of the departure will be fully investigated,” a government spokesman responded disingenuously.
This surprising episode says as much about the domestic rule of law in South Africa as it does about the country’s respect for international law.
As soon as the court agreed to hear the case, the stage was set for a showdown. The African Union’s argument that sitting leaders are exempt from criminal prosecutions was already an outdated concept and they knew it. The Rome Statute, which became international law almost two decades ago, and has been adopted into domestic law by ICC member countries, including South Africa, states unequivocally that no one may remain unaccountable for perpetrating genocide, crimes against humanity or massive war crimes.
South Africa, buttressed by the African Union, chose the high-stakes game of defiance. By enabling the departure of Mr. al-Bashir in breach of a judicial order, they thumbed their noses at the other 122 member states of the ICC, representing almost two-thirds of the countries in the world.
African states were among the first to join the International Criminal Court by ratifying the Rome Statute. Uganda independently referred a case to the court. Fatou Bensouda, the chief prosecutor, is a Gambian, All the same, the African Union has become increasingly hostile to the ICC, accusing the court of Western “neo-colonialism” and “racism.” While it is true that the ICC has focused its investigations on Africa, it is also true that the world’s most serious human-rights abuses have occurred on that continent: the Lord’s Resistance Army in Uganda; the abuses taking place in the Central African Republic; and, not least, the crimes committed in Darfur.
Though they are distorted, these charges are having an effect. Late last year, Ms. Bensouda was forced to abandon her case against Kenyan President Uhuru Kenyatta, who was indicted for overseeing atrocities following the disputed elections of 2007. Ms. Bensouda cited witness intimidation and government obstruction.
The events of this week are new evidence of the AU’s campaign to undermine the court.
When Mr. al-Bashir arrived back in Khartoum on Monday, Sudan’s Foreign Minister described the South African High Court order to detain the President as “an attack on Sudanese sovereignty.”
These were resonant words.
Back in 2001, U.S. President George W. Bush unleashed an attack against the ICC on grounds of national sovereignty. He failed to destroy the tribunal in its infancy. However, the African Union, in concert with South Africa, has acted on identical grounds.
The dispute between politics versus international law is ongoing. The world is in transition as we move, in fits and starts, from the Westphalian idea of absolute national sovereignty toward a more globalized vision of international relations that includes international criminal law.
The powerless victims of the world’s worst crimes deserve better justice. The African Union’s assault on the ICC must be condemned at the highest levels.