As Bashir lands in Sudan, South Africa's commitment to ICC in tatters

Sudanese President Omar al-Bashir landed in Khartoum Monday evening after a dramatic two-day visit to Johannesburg, where he came closer than ever before to facing charges of crimes against humanity brought against him by the International Criminal Court. 

For more than six years, President Bashir has dodged the ICC's warrants for his arrest, becoming the most glaring example of the court's failure to compel states to comply with its rulings. 

When Mr. Bashir’s plane touched down here Saturday night for an African Union summit, it seemed the jig was finally up. One of Africa’s most wanted criminals had walked straight into one of the continent’s most muscular democracies, and within hours of his arrival, a judge had barred him from leaving the country until the courts could decide if South African was obliged to arrest him under international law. 

On Monday morning, however, Bashir boarded his jet at a military air base and flew home to Khartoum, defying the judge's ruling. His flight has raised questions over South African's complicity and put another dent in international efforts to hold the Sudanese ruler to account for his involvement in the 300,000 people killed in Darfur’s ethnic genocide. And it marks another blow to the ICC’s credibility on the continent, where it has repeatedly struggled to convince African leaders to turn over their own for prosecution. 

“The ICC is wounded, it’s really wounded,” says Gilbert Khadiagala, head of the international relations department at the University of the Witwatersrand in Johannesburg. “Between the ICC withdrawing from prosecution of [Kenyan President] Uhuru Kenyatta and now South Africa letting Bashir go instead of carrying out its international obligation to send him to the ICC, it’s clear that the court’s legitimacy is on a serious downward slope in Africa.”

Africa bias

Since the ICC began its work in 2002, it has opened nine cases in eight countries — all of them in Africa — raising the hackles of African leaders who argue its policing of war crimes is biased. 

"This world is divided into categories,” said Rwandan President Paul Kagame in 2013. “There are people who have the power to use international justice or international law to judge others and it does not apply to them.” 

In 2013, the AU passed a resolution that no sitting African head of state should be tried before the ICC — a direct jab at the court’s warrants for the arrest of Kenya’s president Uhuru Kenyatta and his deputy William Ruto on charges of instigating violence in aftermath of the country’s 2007 election. The following year, the ICC officially withdrew its charges against Mr. Kenyatta. 

But if the continent has largely rejected the mandate of the court, South Africa's position is more ambiguous, says Azwimphelele Langalanga, a researcher at the South African Institute of International Affairs who studies South African foreign policy. A signatory to the Rome Statutes that created the ICC, the country has pledged to arrest any fugitive within its borders. Yet the diplomatic fallout of arresting an African president during a continental summit seems to have trumped this commitment. 

“South Africa generally suffers from a crisis of legitimacy in Africa — it wants to play a leadership role but it’s not always seen as deserving,” Mr. Langalanga says. “If it had gone ahead and arrested Bashir, it would have further isolated Pretoria from the continent.” 

A divided South Africa

South Africa’s decision to let Bashir leave also exposed rifts between the country’s executive and its courts. The ruling African National Congress (ANC) had promised diplomatic immunity to any heads of state traveling to its summit, and its national executive said in a statement Sunday that African countries “continue to unjustifiably bear the brunt of the decisions of the I.C.C., with Sudan being the latest example.” 

And although the ANC has yet to make an official comment on Bashir’s departure, any plane taking off from a military air base could have done so only with clearance from the executive, Langalanga says, particularly since a court order had sealed all borders to Bashir until his case could be settled.   

“In a way it’s actually heartening because [the court challenge] shows how willing civil society in this country is to really push the envelope and be aggressive in its pursuit of justice,” Mr. Khadiagala says, referring to a civil-rights group that petitioned the court to arrest Bashir. “It’s also a statement about how independent the courts here are  — government knew it was likely that they would rule in favor of Bashir’s arrest, and so they had to circumvent that.”

The Pretoria High Court was in recess midday Monday when the news trickled out that “Sudan 1” had taken off from Waterkloof Air Force base. A few minutes later, the court resumed proceedings on the legality of arresting Bashir. But its work — like much of the ICC’s — felt suddenly and profoundly distant.