By Abdul Tejan-Cole and James A. Goldston
For some, the flight of President Omar al-Bashir from a military airfield in South Africa on Monday morning was another blow to the prestige of the International Criminal Court, which has indicted the Sudanese leader for mass atrocities in Darfur. Al-Bashir’s ignominious departure came even as a South African judge was hearing arguments on whether the government was legally obliged to arrest him and hand him over to the ICC.
But take a deeper look. First, the world witnessed the president of a sovereign state fleeing like a common criminal – surely not his preferred manner for leaving an African Union Summit. If al-Bashir attended this Summit in the hopes of weakening the restrictions on his travel, he seems to have failed. The legal dustup – and the South African court’s confirmation of its government’s duty to arrest an ICC suspect, even a head of state – does not augur well for future trips by al-Bashir to Rome Statute member states.
Second, while al-Bashir has once again escaped the ICC’s clutches for now, the South African government was forced to go to some uncomfortable lengths to make that happen -– including seeking to persuade its own judges that al-Bashir was not subject to arrest, maneuvering the Sudanese president’s plane from a civilian to a military airfield in what seemed to some an effort to lay the ground for evading an unfavorable judicial finding, then enduring the condemnation of a court that found it had acted inconsistently with its own constitution. Even from the perspective of a government that has withdrawn its once-staunch support for international justice, this series of sidesteps is somewhat embarrassing.
Third, in upholding the application of South Africa’s ICC implementing legislation in this case, over a government attempt to put political considerations first, the legal action, brought by local human rights groups and properly enacted by the courts, has provided strong affirmation of the rule of law in South Africa.
Having first decided to adhere to the AU resolution and invited al-Bashir to attend the AU summit, the government must now explain to its own judges and people - why it violated a court order – and South Africa’s constitution - by allowing his departure. In a country whose transition from apartheid to democracy is rooted in constitutionalism, this is no small matter. Internationally too, South Africa has damaged its aspirations to be seen as a leading light in the developing world. No matter that China, Russia and India will likely applaud it's stance but it's high estimation in the eyes of countries in the global north (which it craves) will be irreparably damaged.
In short, South Africa’s political leaders have simultaneously discredited themselves, and heightened attention to the disjuncture between their short-term political interests and what their own law requires. Those officials who made the decision to defy the court order banning al-Bashir’s departure now face the risk of being found in contempt of court. And if their aim was to unite the continent behind a wave of an anti-ICC sentiment, their effort fell short, as evidenced by the statements of senior officials of Malawi, Senegal and Tanzania in the run-up to the AU Summit endorsing the ICC and/or calling for al-Bashir to be arrested.
All this makes it unlikely that al-Bashir will be returning to South Africa in the near future. Kenya is also off limits, since its High Court issued a warrant for al-Bashir’s arrest in 2011, following a similar legal challenge brought by a local human rights group after Kenya’s then-president allowed an al-Bashir visit. It is not at all clear that other self-respecting democratic governments will want the headache of public controversy or judicial condemnation that inevitably comes with the visit of a head of state who is wanted by the ICC.
In that regard, it is worth remembering what al-Bashir is wanted for. He is charged with being responsible for death and displacement on a massive scale in Darfur, including intentionally launching attacks upon civilian populations, and perpetrating genocide against the Fur, Masalit and Zaghawa ethnic groups. The victims of his crimes were Africans. Anyone who doubts al-Bashir would receive a fair trial at the ICC need only consult the Court’s record. To date, it has convicted two persons and has acquitted one militant leader (from the DRC) at trial. In a number of other cases, the judges have forced the Court’s Prosecutor to modify or withdraw charges against particular defendants for lack of sufficient evidence. Last December, the Prosecutor herself agreed to withdraw charges against Kenya’s President when, in part due to official obstruction, her office acknowledged that it could not amass the evidence needed to prove guilt beyond a reasonable doubt.
For those with long enough memories, al-Bashir’s morning flight brought back the memory of another political leader who found that, even after he evaded a court ruling, the world was no longer prepared to turn a blind eye to the crimes of the most powerful. In March 2000, after the United Kingdom’s highest court ruled that former military leader Augusto Pinochet, could be extradited to Spain for prosecution for torture, he was allowed to leave the United Kingdom for Chile on health grounds. Pinochet went home, but, he did not escape prosecution. He was ultimately charged with numerous crimes by a Chilean judge, and died before trial, a disgraced man. Now, domestic courts around the world are increasingly recognizing that that not just former but sitting heads of states do not have immunity for serious crimes.
Justice for grave crimes is not always swift, nor is it sure. But if recent history is a guide, it is increasingly probable. Ratko Mladić, Radovan Karadžić, Slobadan Milosevic, Khieu Samphan, Nuon Chea, Charles Taylor…they all learned that truth. Despite the efforts this week of South Africa’s government, Omar al-Bashir will one day join that list.
Abdul Tejan-Cole and James A. Goldstone are human rights lawyers specialising in international justice, and write in their personal capacities. This article was first published in City Press on June 21.
(C) Politico 26/06/15
