In dispute over Bashir, S. Africa throws down fresh challenge to criminal court

The International Criminal Court's shaky standing in Africa may have been furthered damaged by S. Africa's refusal to detain the visiting Sudanese president last week – and its move to challenge its own court for trying to prevent him from leaving.

Sudanese President Omar Al-Bashir’s plane had barely lifted off from a South African military air base earlier this month when the question first surfaced: Was this the beginning of the end for the International Criminal Court?

Mr. Bashir, after all, had arrived in the country with an ICC arrest warrant for war crimes dangling over his head. But South Africa — despite its membership in the ICC — had let him go free, the latest in a line of African countries to snub the court’s attempts to prosecute the continent’s most nefarious war criminals.

Then, on Monday, the South African government announced that it would bring a challenge to its own high court for attempting to prevent Bashir from leaving. The move came after the government stated last week that it was considering formally withdrawing from the ICC, a heavy blow to the international court’s already-wobbling legitimacy on the continent. 

"I would say give notice, get out of [the court], it was not what was envisioned,” said Gwede Mantashe, secretary general of the ruling African National Congress on a popular talk radio station. “It is a tool in the hands of the powerful to destroy the weak.”

South Africa’s own convoluted relationship with the court suggests the ICC’s future on the continent is far from settled. And experts say much hinges on what the government does next.  

“South Africa is in a very difficult position here but also a powerful one,” says Azwimphelele Langalanga, a researcher at the South African Institute of International Affairs who studies South African foreign policy. “As a very young country, it’s still trying to win sway and make friends among its fellow African countries by sympathizing with their position on the ICC. At the same time, its membership in BRICS and the G20 make it the best positioned country on the continent to lead the discussion internationally on how to hold accountable African war criminals.”

When it comes to the ICC, the government often seems to straddle two worlds. On the one hand, South Africa — which was white-ruled only two decades ago — is constantly fighting to prove it is “African enough” to be a leader for the rest of the continent, Langalanga says.

On the other, “South Africa certainly wants to play both sides — it wants to be seen as supporting international criminal justice efforts but also African autonomy,” says Jeremy Sarkin, a professor of constitutional and international law at the University of South Africa. “But what’s clear from the Bashir case is that between the AU and the ICC, at least for now, South Africa chooses the AU.”

Leaving is not easy

Choosing the African Union does not necessarily mean abandoning the ICC altogether. For one thing, Mr. Sarkin notes, leaving the court may be a dramatic gesture, but it’s also a major practical problem.

South Africa must first agree internally that it wishes to leave, then formally withdraw from the Rome Treaty — the international law that created the court. After that, the treaty stipulates that South Africa must still remain a member of the ICC for a full additional year before its membership officially lapses.

These stumbling blocks have often meant there is more bark than bite to African threats to formally sever ties with the court. In 2013, Kenya’s parliament voted to withdraw from the ICC after the court announced that it would prosecute the country’s president and vice president on charges of inciting violence in the aftermath of the 2007 presidential election. Despite the gesture, two years later, Kenya is still officially an ICC member – and the charges have been dropped.

Africa’s own court

Meanwhile, the debate over Bashir’s covert exit from South Africa June 15 — which was in direct violation of a local court order — has also catalyzed renewed discussion about how African countries might better police and punish their own criminals, independent of the ICC.

Technically, an AU-backed alternative to the ICC — the African Court on Human and People’s Rights — has existed for more than a decade, although it has been ratified by only half of AU member countries and pursued almost no high-profile cases.

“I think you’re going to see a much greater push now for that court to have jurisdiction,” Sarkin says. “That’s in part because it’s a great way out — countries can say, we’re not opposed to the ICC because we’re against international justice. We’re just doing it already ourselves.”

As Langalanga notes, any Africa-based human rights court will quickly smack up against a major challenge — almost no one wants to rock the boat by laying war crimes charges against their neighbors and trading partners.

“For me, this isn’t about the future of the ICC so much as it’s about the future of Africa,” says Luis Moreno Ocampo, an Argentine lawyer and the first prosecutor of the ICC. “Africa has the right to establish its own courts, sure, but first you need African countries to accept those courts, otherwise doing it yourself means, practically speaking, doing nothing.”