14 June 2015
New York Times
JOHANNESBURG — As the only head of state wanted by the International Criminal Court on genocide charges, President Omar Hassan al-Bashir of Sudan had spent years looking over his shoulder. He avoided countries where the risk of arrest seemed high. He visited friendly African nations hostile to the court, though he sometimes quickly left for home when the ground seemed to shift.
But on Sunday, Mr. Bashir found himself unable to leave South Africa, which he was visiting to attend an African Union summit meeting in Johannesburg. A South African High Court ordered the government to prevent Mr. Bashir from departing until it issues a ruling Monday on whether the government is required to arrest him and hand him over to the international court.
In the six years since the Sudanese leader was indicted, it is the closest the International Criminal Court has come to arresting Mr. Bashir. His fate over the next few days could determine the court’s own long-term relevance and influence the behavior of his fellow African leaders, many of whom have rallied around him against the court.
The court, in The Hague, forcefully called on South Africa to arrest Mr. Bashir, who is suspected of having ordered atrocities in the conflict in the western Sudanese region of Darfur. It demanded that South Africa, a member state of the international court, “spare no effort in ensuring the execution of the arrest warrants” issued by the court against Mr. Bashir.
The South African government, which had yet to comment directly on the court’s demand, argued that heads of state have immunity during the African Union summit meeting. Human rights groups said that South Africa must meet its obligations under the international court and take Mr. Bashir into custody.
The developments surrounding Mr. Bashir exposed longstanding tensions between the international court and African governments, which have argued that the court unfairly targets African leaders and nations while ignoring crimes elsewhere. The African Union, a body representing the continent’s governments, has a history of protecting the rights of its members more than the rights of ordinary Africans. It has aggressively campaigned against the court, and it has told its members that they need not comply with its demands.
Mr. Bashir, who came to South Africa apparently with the belief that his fellow leaders would protect him, must now wait to see whether they actually will.
Some experts believe that the High Court on Monday will rule that South Africa is legally required to arrest the Sudanese leader. It is not clear how the South African government — which, like many African governments, has called the credibility of the international court into question — will respond.
“We are hoping that they would comply with any order issued by the court,” said Caroline James, a lawyer for the Southern Africa Litigation Center, which filed the court action preventing Mr. Bashir from leaving. “In the event that they don’t, we’d have to reassess our position and consider bringing contempt of court proceedings against the officials who do not abide by that ruling.”
The African National Congress, South Africa’s governing party, said in a statement that the 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.”
Because membership is voluntary, non-signatory nations can commit violations that “go unpunished,” it said. It added that member states, especially in Africa and Eastern Europe, which have shown their “unwavering commitment to upholding human rights and universal justice” by joining the court, “continue to unjustifiably bear the brunt of the decisions of the I.C.C., with Sudan being the latest example.”
The United States, which opposed the creation of the court because it believed that its officials would be subject to unfair treatment, has not joined the court.
South Africa, which has one of the strongest justice systems on the continent, had warned Mr. Bashir twice in past years not to visit because he might face arrest. Kamal Ismail, a Sudanese foreign affairs official, told reporters in Khartoum, Sudan’s capital, that South African officials had assured Mr. Bashir that he would be welcome here, according to The Associated Press. A South African foreign ministry spokesman did not return calls seeking comment.
Fatou Bensouda, the prosecutor of the court, said Sunday by phone from The Hague that her staff members had met with a South African envoy on Friday.
South Africa, she said, reminded her office that the African Union itself had pledged not to cooperate with the court on the Bashir indictment. Her staff members, in turn, reminded South Africa of the treaty it had signed.
“I am looking forward to President Bashir to be arrested and sent to the I.C.C.,” she said. “This is the correct thing to do. This is the legal thing to do.”
In an African Union-related trip to Nigeria in 2013, Mr. Bashir abruptly cut short his visit when Nigerian human rights lawyers moved to seek his arrest in a domestic court.
“But this time, he’s already been seen,” said Jemima Njeri, a researcher at the International Crime in Africa Program at the Institute for Security Studies. “He’s attended an A.U. summit for at least a few minutes. He’s been in the country and he has not been arrested. I think the options for the South African government are few. The damage is already done.”
A smiling Mr. Bashir, who was re-elected in April, appeared at the gathering on Sunday, standing in the first row of a group photo with other African leaders here.
If Mr. Bashir’s case is a test of the African Union’s loyalty to one of its own, it is also a test of the International Criminal Court and its relevance on the continent where it has focused its attention since it began functioning in 2002.
The court said it had “deep concern about the negative consequences for the court” if Mr. Bashir’s arrest was not executed by South Africa. Countries that have ratified the 1998 Rome Treaty to join the court are treaty-bound to cooperate with it and, as in this case, to carry out its arrest warrants.
But if the governments ignore these, there is little the court can do because it has no police force or other means of enforcing its decisions.
The arrest warrants have restricted Mr. Bashir’s trips outside Sudan. But he has traveled in recent years to other African nations, including member states of the court like Malawi, Chad and Congo. The countries were held in noncompliance by the court but faced no penalty.
Increasingly frustrated by the lack of cooperation from member states and Sudan’s own refusal to extradite its leader, in March the international court urged the United Nations Security Council to enforce compliance. At the prompting of the Security Council a decade ago, the court opened a criminal investigation of the Sudanese government’s actions during the conflict in Darfur, which led to the deaths of hundreds of thousands of people and displaced millions. Mr. Bashir and three other high-ranking officials were indicted in 2009 on charges of genocide, crimes against humanity and war crimes.
In recent years, African officials, some of whom have sought immunity for sitting heads of state, have described the court’s treatment of Africa as a form of imperialism. They point out that the court has not sought to prosecute officials in Syria and other conflicts outside Africa. Since the court began operating, all of its nine investigations have focused on African nations.
In fact, it was Mr. Bashir who initially began the campaign against the court in Africa, soon after his first arrest warrant in 2009. Calling the court biased against Africans, he succeeded in enlisting other leaders, including Uhuru Kenyatta, the president of Kenya, who was indicted by the court on charges of crimes against humanity.
Their campaign finally convinced the African Union to call on the court to stop proceedings against sitting presidents. The union also stated that none of its members were obliged to arrest leaders on orders of the court. It was a political success, but one without legal ground since countries that have joined the court are bound by the Rome Treaty to cooperate with it.
African leaders are also far from unanimous. Sidiki Kaba, who heads the court’s governing body and called on South Africa to arrest Mr. Bashir over the weekend, also serves as Senegal’s justice minister.
The court’s defenders say that it has focused on African cases because of the continent’s weak legal systems, and they also point out that some of the cases were initially referred to the court by African nations themselves. They say that the African Union, which has a spotty record on human rights and is currently headed by Robert Mugabe, the authoritarian president of Zimbabwe, is simply seeking impunity for its members.
Marlise Simons contributed reporting from The Hague, and Somini Sengupta from New York.