March protest, 2015, Downing Street. Demotix/ David Cliff. All rights reserved.(Benin, June 18, 2015) - Sudanese President Omar al-Bashir's visit to South Africa was a significant missed opportunity to arrest him and transfer him to The Hague to face charges of grave crimes in Darfur. But it wasn’t a lethal blow to the International Criminal Court. Quite the opposite.
Context is important. The possibility that people accused of genocide, war crimes, and crimes against humanity will face criminal prosecution is a relatively new phenomenon. In the wake of the post-World War II trials in Nuremberg and Tokyo, international justice went on a 50-year hiatus. Powerful people implicated in the worst atrocities could expect to live all their lives without fear of arrest.
Criminal accountability resurfaced in the early 1990s with the creation of the ad hoc International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda. The treaty to establish the International Criminal Court was only adopted in 1998, and it entered into force in 2002.
It was never going to be easy. Trials for grave crimes, especially of senior officials before international courts, puncture traditional notions of state sovereignty and immunity for heads of state. Even a threat of prosecution against sitting high level government officials provokes contention, controversy, and backlash.
But this past weekend South African courts ordered that a sitting president who was in the country be barred from leaving South Africa because of the ICC arrest warrants against him. The court order was a first-of-its kind concrete domestic action to promote justice for grave crimes. The court subsequently ordered al-Bashir to be arrested so he could face justice, although he didn’t stick around to hear this decision.
South African officials should have respected their international legal obligation to cooperate with the ICC and the orders of their own domestic courts to prevent al-Bashir from leaving and to arrest him. There may well yet be consequences for the government for helping him slip away, whether before their own courts or within the international community.
But al-Bashir, who has been playing cat-and-mouse with the arrest warrants for five years, probably came closer to arrest than ever before. That was due to the tenacious activism of nongovernmental groups, most notably the Southern Africa Litigation Centre, which took the lead by filing the legal application for his arrest. And it is safe to say al-Bashir will not be heading back to South Africa anytime soon.
Even if al-Bashir is not on his way to The Hague, the issue of accountability for victims of grave crimes took centre stage in Africa and around the world. The issue completely overshadowed the African Union summit al-Bashir was in South Africa to attend. Social media carried moment-to-moment updates. Policy makers, journalists, activists, and ordinary citizens followed the developments with intense interest.
It was not to be this time around, but next time there could well be a different outcome. A few years back, many people were skeptical about whether former President Charles Taylor of Liberia would ever face trial for atrocities committed in Sierra Leone's conflict. Today he is serving a 50-year sentence.
The events surrounding al-Bashir have reignited heated rhetoric averring that the ICC is targeting Africa. There is certainly a need to expand the reach of justice to countries that haven't joined the ICC - including the US, Russia, and China. And the permanent members of the UN Security Council shouldn’t block referrals to the ICC out of political considerations.
But African leaders who contend that the ICC is anti-African are doing their people a disservice. The fact is that most ICC investigations in Africa came about because the government of the affected country asked the ICC to step in. And the ICC is serving African victims who have no recourse in their national courts.
While Bashir may have escaped arrest this time, this week's events show that justice is making strides forward, albeit slow, uneven ones. Business as usual for war crimes fugitives has ended.
But given the arduous effort of moving the cause of justice forward, some may ask why persist? At the end of the day, it's pretty simple - victims of the world’s worst crimes should have the chance for redress, and those responsible should not be able to get away with it. These values are well worth fighting for.