The flight — both literal and figurative — of Sudanese President Omar al-Bashir from a warrant for his arrest on war-crime charges signals what may well be an unalterable erosion of ties between the International Criminal Court and its member African nations.
While attending an African Union summit Monday in Johannesburg, Bashir was barred from leaving the country, pending a court ruling on whether to execute the warrant. Yet, amid the deliberations, Bashir — whose charges of genocide and crimes against humanity stem from the Darfur conflict that has engulfed his country since 2003 — blithely boarded a plane home. By the time the Pretoria High Court had rendered a decision, he was halfway to Khartoum, where he arrived to cheers from supporters.
The I.C.C. has long faced resistance from African leaders, many of whom claim it practices a “selective justice” founded on the same presumed sense of racial superiority that fueled the late-19th-century Scramble for Africa, which created many of its contentious modern-day borders. As Ethiopian Prime Minister Hailemariam Desalegn put it in a 2013 address to the A.U., “the intention was to avoid any kind of impunity, but now the process has degenerated into some kind of race hunting.”
Kenyan President Uhuru Kenyatta, who appeared at The Hague in 2014 for a landmark hearing on his role in the 2007 post-election violence that cost more than 1,000 lives in his homeland, has openly accused the court of bias and refused to retract his words even after the charges against him were dropped.
President Robert Mugabe of Zimbabwe, meanwhile, continues to urge the A.U. to divorce itself from the I.C.C. and set up its own tribunal. It should be noted that Zimbabwe and Ethiopia are not signatories to the Rome Statute, which established the I.C.C. in 2003. Kenya is, but has pushed for an amendment that would grant sitting heads of state immunity from prosecution.
Mugabe has had no direct stake in any matter before the tribunal. Yet his voice has been one of the loudest against it, even calling in January for all of Africa to exit from any further relationship with the I.C.C. and for placing that demand atop the agenda of the June summit in South Africa – which, like Bashir, has now come and gone.
What remains is a key question: Does the I.C.C. have any relevance left in a continent where so many countries refuse to recognize its authority? After all, South Africa, an I.C.C. member that had shown no sign of wishing to withdraw, was honor-bound to detain Bashir yet never actually took him into custody.
Although the Democratic Alliance, South Africa’s main opposition party, pushed for an immediate arrest,“to display the political will to uphold the law, both domestic and international, and send a message that South Africa takes allegations of crimes against humanity and war crimes very seriously.”
But even as the when-and-how of such an action against a foreign dignitary were the subject of heated debate in South Africa’s media, the order that Bashir not leave was generally considered enough to ensure that he would soon be in the dock at The Hague.
In retrospect, occurrences immediately prior to Bashir’s arrival and after his abrupt departure may be seen as revelatory. South African President Jacob Zuma welcomed him with a veritable honor guard despite the I.C.C.’s having seconded the Democratic Alliance’s motion for him to be detained on the spot. And since Bashir flew the coop, there has not been one peep from Zuma resembling an apology or even an explanation for South Africa’s failure to adhere to its own constitution by allowing an alleged war criminal to slip from its grasp. In fact, Mugabe has now said that Zuma assured his colleagues prior to the summit that Bashir would not be arrested.
The I.C.C.’s immediate response, perhaps in hope of forestalling what is more and more resembling the inevitable, was subdued. Its deputy prosecutor, James Stewart, classified the lack of an arrest as “disappointing” and told the BBC that the court remained “quietly optimistic and determined to see justice done in this case.”
It is no sure thing, however, that justice — as defined by the I.C.C. — will come to Bashir so long as he remains in Africa. In the six years during which he has been pursued by the international court, he has leapfrogged much of the continent and avoided arrest at every stop.
That includes a visit two years ago to Nigeria, which, by dint of its status as an economic powerhouse in the region, is considered a cornerstone of I.C.C. support. South Africa is another, for much of the same reason.
Now each has shown itself unwilling to do the court’s bidding. And the I.C.C. publicly continues to paint itself hopeful even as it likely ponders when — not if – it will be hit with a mass exodus of support from a part of the world where many leaders and citizens alike look north, perhaps fearing a new form of imperialism.