Thin line between immunity and impunity

Outrage about Bashir's flight from justice would carry considerably more weight were the ICC able to operate without exceptions.

By Mahir Ali

Published: Thu 18 Jun 2015, 10:21 PM

Last updated: Wed 8 Jul 2015, 3:15 PM

A minor drama was acted out in Johannesburg at the weekend, where regional leaders were congregating for an African Union (AU) summit, when the prospect was raised of Sudan’s president, Omar Hassan Al Bashir, being taken into custody and handed over to the International Criminal Court (ICC) for a trial in The Hague.

This was never likely to occur. A South African court ruled that Bashir should not be allowed out of the country until Monday, when it would rule whether he ought to be taken into custody. The authorities predictably refused to yield, and the Sudanese leader was back in Khartoum by the start of the week.

South Africa has since then been roundly criticized for its laxity in this regard by the ICC, the European Union (EU) and the United Nations (UN), not to mention NGOs such as Human Rights Watch for undermining the ICC - to which South Africa, but not Sudan, is a signatory.

What were the chances, though, that the African National Congress government of Jacob Zuma would take a guest into custody and oversee his rendition to a European country, especially in view of the fact that the ICC’s focus on Africa is viewed with suspicion across the continent?

It isn’t hard, on the one hand, to understand why the ICC’s concentration on Africa might be viewed as reeking of partiality and racial prejudice. At the same time, however, this perception tends to facilitate impunity in a part of the world where crimes against humanity are par for the course.

The ICC was set up towards the end of the 20th century largely as a reaction to “ethnic cleansing” in Rwanda and the Balkans. The signatories to its statutes number only 139, however, and nations that have either not signed or not ratified include not just Sudan but also the three main components of the United Nations Security Council, namely the United States, Russia and China.

It takes a certain amount of chutzpah, in the event, for the Security Council to refer purported crimes to the ICC, as happened in the case of Sudan. The context was the appalling atrocities in the early years of the 21st century in Darfur, where state forces were deemed to be complicit with the Janjaweed militias in trying to wipe out the non-Arab population, leading to hundreds of thousands of deaths alongside mass displacement of civilians.

Bashir was indicted in 2009-10 for genocide and crimes against humanity, whereafter all signatories to the ICC have technically been obliged to hand him over in the event of his presence in their jurisdiction. In practice, though, he has been able to visit several African and Middle Eastern states, and previously faced a close call only during a 2013 visit to Nigeria - but was able, as now, to make good his escape.

He is reported to have been warned against visiting South Africa in recent years, but this time there was at least an implicit promise of immunity, given that he was technically as guest of the AU, currently chaired by Robert Mugabe, the widely reviled 91-year-old president of Zimbabwe. The South African journalist Justice Malala, writing in The Guardian last Friday, roundly berated the AU for standing up for the continent’s dictators rather than its people, citing in particular the cases of Mugabe and Burundi’s president Pierre Nkurunziza, and citing a recent report which shows that “16 African leaders tried to remain in power by changing their countries’ constitutions to remove presidential term limits between 2000 and 2015”. In terms of longevity at the helm, there is no serious challenger to Mugabe - but Bashir, who initially secured power through a 1989 military coup, isn’t all that far behind. There aren’t any takers for the one-term example set by Nelson Mandela.

There can equally be no question that abuse of power, particularly when it entails atrocities against a segment of the population, ought to entail deterrent penalties. The question of who should be judge and jury remains a fraught domain, though, and while the perception of the ICC as a western imperialist construct is questionable, its basis isn’t all that hard to grasp.

The South African government’s refusal to prosecute an ICC warrant has been criticized as a particularly egregious snub, given its exceptional status in the regional context as one country where the rule of law is deemed to operate. However, the Zuma regime has raised pertinent questions about the ICC’s relevance, chiming with concerns expressed by the AU as a whole.

It would be inaccurate to assume, however, that African scepticism alone is instrumental in undermining the ICC. It is difficult to take it seriously or consider it impartial as long as the world’s leading powers - and a large number of others besides, including India, Pakistan and Israel - are not subject to its jurisdiction. Outrage about Bashir’s flight from justice would carry considerably more weight were the ICC able to operate without exceptions. There’s a very thin line, after all, between immunity and impunity.

Mahir Ali is a Sydney-based journalist.

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