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Making a Mockery of International Justice - Al-Bashir and his Trip to South Africa

Written by Amelie Theussen, Ph.D. Candidate at Center for War Studies

Bad news for the International Criminal Court: South Africa let the dictator of Sudan, Omar al-Bashir, fly home despite the outstanding ICC warrant for Bashir’s arrest. South Africa is by far not the only country disregarding its obligations under the ICC’s statute, which requires member states to arrest indictees on their territory. Since the ICC issued the arrest warrant for Bashir in 2009, several other states have been neglecting their obligation as member states to the ICC and have refused to arrest Bashir – among them Uganda, Chad, and the Democratic Republic of Congo. While Bashir’s visit in South Africa last weekend did not go without drama - a South African human rights group had secured a court order requiring Bashir not to leave the country - by the time the High Court in Pretoria confirmed the government’s obligation to arrest Bashir the following day, he had already boarded his flight home. As Foreign Policy’s David Bosco argues, “the South African government, it seems, had ensured Bashir’s safe passage”. This elicited a clear response from the High Court and opposition politicians accusing the government of flouting the law to protect Bashir. 

In his article “Omar al-Bashir Just Made a Mockery of International Justice. Again.” for Foreign Policy, David Bosco gives two ways of interpreting what happened in South Africa last weekend. 

On the one hand, it can be seen as the continuation of a long-standing dynamic between African leaders and the ICC. Bashir has been playing a cat and mouse game with the ICC for years. As already mentioned above, he has visited several ICC member states, which did not adhere to their obligation under the ICC’s rules to arrest Bashir on their territory. As Bosco states, “there is no longer anything shocking about an African ICC member state declining to arrest Bashir”. The underlying reason for this is the sentiment “that the ICC has unfairly targeted African states while sparing the rest of the world”. The ICC is seen as neocolonialist institution only prosecuting Africans, and the African Union’s perspective holds that its states have preexisting obligations to respect each other’s sovereignty and the immunity of the heads of states. However, while this position is nothing new, Bosco argues that the ruling of the South African High Court gives room for hope, as it shows that an ICC arrest warrant “actually means something”. Additionally, Bashir’s situation might have some deterring effect. His travels require careful and extensive negotiations, and several regions (such as Europe, the United States, and Latin America) are completely off limits for him. Consequently, his situation serves as a reminder of the hassles inherent in defying the ICC.  

However, besides this rather optimistic take, on the other hand there is a more pessimistic interpretation for the events in South Africa. According to Bosco, it shows that “ICC states face few consequences for stiffing the court”.  The Security Council does not react to the complaints by the ICC, and there is no evidence that states’ relations with major Western nations suffer, when they disregard their obligations under the ICC’s statute. 

Why this might create dangerous consequences for the ICC, and thus why the events in South Africa should not be cast aside lightly, can be read in David Bosco’s article for Foreign Policy here.

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