On the Run for International Criminal Justice: Sudanese President Omar al-Bashir Escapes from South Africa

by: in Law
On the Run for International Criminal Justice: Sudanese President Omar al-Bashir Escapes from South Africa

In the last few days, the tension between the International Criminal Court (ICC) and the African Union (AU) reached yet another climax in South Africa. Hosting the 25th AU Summit in Johannesburg, the South African Government guaranteed all attending AU leaders, including Sudanese President Omar al-Bashir, immunity. Not too long after al-Bashir’s arrival, however, an NGO, the South African Litigation Centre (SALC), started court proceedings demanding that South Africa would comply with its obligations under the ICC Statute and enforce two warrants for Al-Bashir’s arrest issued by the ICC in 2009 and 2010 concerning the alleged commission of crimes against humanity, war crimes and genocide in the Darfur war. On Sunday, the South African High Court granted an interim order prohibiting al-Bashir to leave the country. Officials at each point of entry and exit to the country were instructed to enforce this interim order.

Some turbulent 24 hours followed. While al-Bashir himself attended the opening session of the AU summit, and joined his colleague leaders for a group photograph, 95.000 people signed an on-line petition stating that the South African Government and its President Jacob Zuma should arrest al-Bashir and extradite him to the ICC. The EU, the USA, the UN and of course the ICC itself agreed and called upon the South African Government to do what justice requires. South African politicians, however, spoke of an opportunistic act initiated by an NGO that was only meant to pit African leaders against each other in the name of international law.

Monday morning, when the hearing before the High Court was (re-)opened, it was reported that al-Bashir had managed to escape South Africa by plane from a military airport near Pretoria. The plane was given permission to take off as the name of the Sudanese President was not on the passenger list. Later in the day, the news was confirmed: al-Bashir’s presidential plane had landed in Khartoum.

The events of last weekend confirm two trends. The first is a worrying one: the ICC, and more generally international (criminal) justice, is increasingly mired in politics. From a legal perspective the picture was relatively straightforward. South Africa is a State party to the Rome Statute and, hence, was under an obligation to execute the ICC arrest warrant for the Sudanese President. Yet, the South African government was quite clearly unwilling to do so and this all seems to be in line with the ANC’s view that no sitting President should be prosecuted and that the “racist, imperialistic” ICC is “no longer useful”. The AU and some of its more powerful members, seek to politicize and undermine international justice. No doubt, in doing so, they have had some “successes”. For example, because of political pressure, the ICC was forced to drop the case against Kenya’s President Uhuru Kenyatta earlier this year. Further, a few years ago, the political leaders of the Southern African Development Community (SADC) responded to a ruling of the SADC Tribunal holding Zimbabwe accountable for ‘land grabbing’ not by implementing the ruling but by simply suspending the entire Tribunal.

The second trend confirmed by last weekend’s events is a more positive one: civil society organisations and courts do take international justice, including criminal justice seriously. NGOs have significantly contributed to the work of the African Commission and Court on Human and Peoples’ Rights, and have actively promoted criminal courts such as the Rwanda Tribunal, the Special Court for Sierra Leone and the ICC. In addition, through their awareness-raising activities, NGOs appear to be quite successful in convincing the African population of the need for criminal justice and human rights. Of course, NGOs lack political decision-making power and courts need politicians to have their judgments enforced. Yet, the court proceedings initiated by the SALC and the popular support for the proceedings in the case of al-Bashir, do demonstrate that public opinion is gradually turning against all those African leaders who merely seem concerned about their own fate and have no eye on the interests of all those who suffered from international crimes and gross human rights violations.

The escape of al-Bashir is of course a disappointment, but there is hope. In 2005 the Prosecutor of the Special Court for Sierra Leone asked the Ghanaian Government to arrest Liberian President Charles Taylor, who was attending peace talks in the Ghanaian capital Accra. The Ghanaian President Kufuor, however, refused to arrest Taylor because of “strong links of solidarity and brotherhood among West African heads of State.” Yet, we know what happened with Taylor ever since. After increasing international political pressure, Taylor was forced to step down as President, offered a “safe asylum haven” in Nigeria, subsequently transferred to The Hague to stand trial and he was ultimately found guilty by the Special Court for Sierra Leone. Last weekend, al-Bashir could still escape from the wings of justice, but the final destination of his next foreign trip might, and hopefully will, not be Khartoum but The Hague.