Africa Criminal Justice Diplomatic Relations Expanding Community Global Governance Human Rights International Law & Policy International Relations Malcolm McEachern Peace & Conflict Studies Peace & Security Rights Sudan United Nations

Justice Flew Away

An opportunity arose at the recent African Union (AU) summit in South Africa to deliver some form of justice to the people of Darfur. Omar al-Bashir, the President of Sudan, attended the summit. He has been wanted by the International Criminal Court (ICC) for charges of genocide and war crimes in Darfur since 2009. South Africa has signed the Rome Statute and is within the ICC’s jurisdiction, and is, therefore, obliged to make an arrest. Instead, Mr. Bashir flew safely home to Sudan on his private jet while the South African government and its high court argued whether he would be arrested or not. In the end, the high court did rule that he should have been arrested, however it was too late.Omar Hassan Ahmad al-Bashir, the president of Sudan, listens to a speech during the opening of the 20th session of The New Partnership for Africa's Development in Addis Ababa, Ethiopia, Jan. 31, 2009. The partnership's primary objective is to eradicate poverty in Africa and bring long-term and sustainable political, economic, and social change to the continent. (U.S. Navy photo by Mass Communication Specialist 2nd Class Jesse B. Awalt/Released)

James Stewart, the ICC’s deputy prosecutor, said, “in our view, it was very clear that South Africa should have detained Bashir so he could have been brought to trial in the Hague.” In a statement released by South Africa’s ruling African National Congress Party, it declared that the ICC is “no longer useful for the purpose for which it was intended.” This decision has pushed South Africa, once the ICC’s biggest African supporter, to possibly leaving the ICC.

This fiasco has stirred controversy not only on the relationship between the ICC and South Africa, but has re-opened the debate over whether or not the court has a bias against Africa. Africa was once a vibrant supporter of the ICC. The massacre in Rwanda, and the need to prevent stronger countries from praying on weaker ones led to the continent’s great faith in the ICC. Today, the situation is different. The AU has spoken against the court. Tedros Adhanom Ghebreysesus, the Ethiopian foreign minister, stated at a 2013 AU conference, “[s]itting heads of state and government should not be prosecuted while in office.” There are currently nine situations being investigated by the ICC, all of which are in Africa. Out of the 32 individuals that have been indicted by the court all of them are African. It is understandable why many African leaders feel targeted by the ICC. This is not, however, the complete picture. This argument fails to acknowledge past international tribunals of the former Yugoslavia and Cambodia.

There are legitimate reasons as to why the ICC now weighs more heavily on Africa than any other area. The majority of the continent signed the Rome Statute, bestowing the ICC jurisdiction. In other parts of the world, this has not been the case. Many Middle Eastern countries have not signed the treaty, and many more influential countries, such as the US, Russia and China, have also not signed it. Sudan did not choose to sign the statute, and the ICC did not choose to investigate Bashir. In fact, it was the UN Security Council that requested this investigation.]

Generally, the ICC does not select its own cases. In half of all its investigations, Uganda, Congo, the Central Republic of Africa, and Mali, the state asked for the court’s involvement, while Libya and Sudan were investigated based on a request from the UN Security Council. It is only in the cases of Kenya and Cote D’Ivoire that the cases had been brought to them from the prosecutor’s own drive. The focus on Africa is a direct result of the practicality of the court’s jurisdiction as the ICC can only work where it is allowed. African conflicts receive more attention than, for example, Syria because the ICC would require permission from the UN Security Council to investigate. However, the ICC still conducts investigations into crimes in other regions of the world, such as Afghanistan, Colombia, Georgia, Honduras, and Iraq specifically involving the actions of British soldiers, South Korea and Ukraine.

In the past, Bashir has travelled to states where the ICC has jurisdiction without being arrested. The South African situation is different as the country is a regional power and a vocal supporter of the court. In 2009, Bashir was invited to Jacob Zuma’s inauguration, but officials stated Bashir would risk arrest if he came due to the outcry from activist groups. In the end, he did not attend.

The recent actions taken by the South African government have harmed the credibility of the ICC in a big way, as it no longer has the backing of the regional power. The AU’s view that incumbent presidents should be immune from international law will ruin the international justice system, as no one can be immune from war crimes and mass murder. This will not happen overnight, it took 13 years before Radovan Karadzic, the Bosnian Serb leader who carried out mass murders, was brought to trial. International justice will continue to pursue Bashir despite the resentment of many in Africa.

Malcolm McEachern
Malcolm McEachern recently completed his B.A. in Politics & International Relations at the Royal Holloway University of London. Malcolm studied a wide range of topics, from political theory to South Asian politics, and Post-Cold war defense. Malcolm’s main interests include security studies, refugees, human rights, and international relations theory. Malcolm is in the process of applying for a Masters in International Security. He aspires to work for an international organization that focuses on human rights.