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Should South Africa have arrested Sudan's president?

- June 15, 2015

Sudanese President Omar al-Bashir (C), Congo’s president Denis Sasso-Nguesso (R) and Prime Minister of the Sahrawi Arab Democratic Republic Abdelkader Taleb Oumar (L) pose for a photo during the 25th African Union Summit in Sandton, South Africa, on June 14, 2015. Bashir joined the African Union Summit in Johannesburg on Sunday despite the International Criminal Court calling for him to be arrested at the event. (Gianluigi Guercia/AFP/Getty Images)
When Sudanese President Omar al-Bashir decided to attend the recent African Union (AU) Summit in South Africa, he must have thought it presented yet another opportunity to escape his pariah status. Bashir holds the notorious distinction of being the only person whom the International Criminal Court (ICC) indicted for the unholy trinity of international crimes — crimes against humanity, war crimes and genocide.
South Africa has been a traditional defender of the ICC and has previously insisted that it would arrest Bashir if he stepped foot on its territory. His visit to South Africa with impunity seemingly sent a powerful signal that the ICC’s indictment no longer constrains his movements. Instead, South African courts moved to ban Bashir from exiting the country as they considered whether and how to fulfill its legal obligation to arrest him and turn him over to The Hague. Thus, while Bashir managed to escape the country and the ICC’s credibility was certainly taken a hit, there are also positives to take from the Sudanese president’s visit — and the responses to it.
Bashir was first indicted by the ICC in 2009 for his alleged role in ordering mass atrocities in Darfur. The fact that he has never been tried for those crimes and has successfully traveled to several countries including Saudi Arabia, Kenya and the Democratic Republic of Congo, is an ongoing stain on the court’s record and an insult to the victims of atrocities in Darfur. To date, however, South Africa is the most diplomatically influential ICC member-state to host the Sudanese president. Had his visit passed smoothly, other states may have felt emboldened to host Bashir in the future. That would have been potentially catastrophic for the ICC and its champions. However, the outcome of Bashir’s South African visit was something very different.
While his arrival took observers by surprise, given the ICC warrants against Bashir, coverage of the AU Summit was dominated by questions over the wisdom and legality of hosting Bashir. The South African government was forced to consider whether it was obliged to arrest the Sudanese president — and to legally justify its position. Further, the government felt it necessary to identify legal loopholes, such as having Bashir depart from a military, rather than civilian, airport, in order to guarantee his safe passage out of South Africa. In other words, it is wrong to assume that South Africa could simply do whatever it wished. The ICC had an impact on the country’s political and legal calculus — even if the results left much to be desired.
The AU Summit will also help to clarify the complex and dynamic relationship between African states and the ICC. South African diplomats and lawyers have argued that there are ambiguities with regards to their obligation to arrest Bashir and that they are torn between their obligations to the ICC and those they have to the African Union. In time, those arguments will be tested and judged. Moreover, African states and diplomats continue to play an indispensable role in supporting the work of the ICC. What we have witnessed in the past few days is an outpouring of criticism of the government of South Africa, not only from Western states but, most importantly, from across Africa. It will be increasingly implausible for African governments not to clarify their positions regarding their support of, and obligations to, the court.
Although Bashir has already left South Africa, the order of arrest from a court in Pretoria will also help set a precedent and clarify the precise obligations states have toward the ICC. By hosting Bashir, the South African government unwittingly raised the costs of its insolence. Not only are they in violation of their legal obligations to the court but they have been, in essence, found to have violated domestic law as well. The likelihood of a repeat visit has surely been diminished.
While fears over the repercussions of Bashir’s visit have received the majority of public and media attention, African leaders’ support for the ICC has also been on full display. Just days before the summit, Tanzanian President Jakaya Mrisho Kikwete visited the court to declare that: “Our support for the ICC is based on the important work that the Court is doing.” That followed Malawi’s decision to undermine any attempts by Zimbabwean President Robert Mugabe to push for an Africa-wide pull-out from the ICC at the AU Summit. In response to Bashir’s arrival to the summit, Sidiki Kaba – who is the president of the Assembly of States Parties of the ICC as well as the justice minister of Senegal – exclaimed his “hope that South Africa, which has always contributed to strengthening the court, will spare no effort to ensure that the warrants of arrest are executed.” In short, there was no shortage of support for the court and anti-ICC sentiment in Africa is far from universal.
Even the nature of Bashir’s visit suggests that the ICC isn’t an impotent institution. Upon arrival, the Sudanese president wasn’t greeted with red carpet treatment or a marching band. There was no photo-op on the tarmac, leaving some journalists to initially ponder whether Bashir had actually made it into the country at all. He did not emerge in the public eye until the next day for a group photo that had been delayed for five hours. Following the announcement of the travel ban, reports – including from one of his own ministers – indicated that Bashir had already returned to Sudan. Though, he was apparently keeping a low-profile while attending meetings at the summit. When he finally did depart in violation of the order against leaving the country, Bashir became the only African leader who had to flee South Africa rather than return back home.
Of course, Bashir’s visit is not simply an “African issue.” Indeed, it may hold the promise, however remote, of galvanizing action by the United Nations Security Council. The ICC can, and almost surely will, issue a notice of South Africa’s non-compliance and send a complaint to the Security Council. While previous complaints to the Security Council have been duly ignored, the drama surrounding Bashir’s visit could finally force the Security Council to tackle the issue and clarify its own stance. That would be a long overdue and welcome development.
Among observers and scholars, there is a propensity to judge the ICC, and international law more broadly, in all-or-nothing, black and white terms. Either international law must be enforced to its fullest or it is an ineffectual fantasy of liberal idealists. But the visit of Bashir in combination with South Africa’s insistence that it is not in violation of international law or its obligations to the ICC may actually reinforce, rather than weaken, international criminal law. Here it useful to recall the 1986 ruling of the International Court of Justice inThe Republic of Nicaragua v. The United States of America:

If a State acts in a way prima facie incompatible with a recognised rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule.

Proponents of the ICC may not like their conclusions or their decisions, but it is worth recognizing that most African states are engaged in the process of interpreting and negotiating the ICC’s rules – rather than discarding them altogether. That could very well end up strengthening international criminal law.
Mark Kersten is a researcher based at the London School of Economics and the creator of the blog, Justice in Conflict.