South Africa’s refusal to hand over Sudan’s President Omar al-Bashir to the International Criminal Court was a fresh snub for the Dutch-based tribunal, highlighting its reliance on support from world powers to do its job, experts said.
Bashir, who is wanted by the ICC for alleged genocide, crimes against humanity and war crimes in Sudan’s Darfur region, flew to South Africa on Saturday to attend an African Union summit.
Seizing on his presence in the country, a South African rights group went to court to try have him arrested.
But despite the court ordering Bashir to remain in the country until the application was heard, the Sudanese leader flew home unperturbed on Monday, in the latest blow to the ICC after it was forced last year to call off its case against Kenyan President Uhuru Kenyatta.
The South African government “quite simply ignored the judge, which is unthinkable under the rule of law,” said Goran Sluiter, lecturer in international law at Amsterdam University.
Sluiter blamed the United Nations Security Council, which in 2005 asked the ICC to probe crimes in Darfur, where some 300,000 people have been killed in a conflict between Khartoum and mostly black African insurgents, according to UN estimates.
“The Security Council said ‘ICC, help us’, but since then they’re not supporting the ICC at all, whether with actions or sanctions,” Sluiter told AFP.
The ICC issued an arrest warrant for Bashir in 2009, but he has continued to travel unimpeded, including to states like South Africa that have signed the court’s founding Rome Statute and are, therefore, obliged to arrest suspects.
“As long as the great powers don’t send clear signals, people like Bashir will get away,” said Willem van Genugten, international law expert at Tilburg University.
In the meantime, the UN Security Council could have hit Bashir with sanctions, such as a travel ban or asset freeze, said Van Genugten.
“There would be much more pressure and Bashir would certainly be more isolated,” he told AFP.
– Constitutional violation –
So far, 123 countries have signed and ratified the Rome Statute — a list that does not include the United States, Russia and China, all three permanent veto-wielding Security Council members.
The Hague-based ICC does not have its own police force and is therefore reliant on states to make arrests.
Former Ivorian president Laurent Gbagbo and former Congolese vice president Jean-Pierre Bemba are in ICC custody in The Hague, but many others of those indicted by the court are being held elsewhere or are still at large.
They include former Libyan dictator Moamer Kadhafi’s son Seif al-Islam, who is being held in Libya, and Gbagbo’s wife Simone, whom Ivory Coast authorities are refusing to hand over for trial.
The chances of arresting a serving head of state or politician are even slimmer.
ICC chief prosecutor Fatou Bensouda suspended her case against Kenyan President Uhuru Kenyatta because of a lack of evidence after Nairobi refused to hand over what she said were “crucial” documents.
The ICC has only been operational since 2003 and has encountered many obstacles in its work, including accusations from the African Union that it unfairly targets the continent.
Prosecutions that could emerge from preliminary ICC investigations launched in Ukraine, Palestine and Iraq could potentially face tough obstacles because they are politically more sensitive for the world’s big powers.
Amsterdam University’s Harmen van der Wilt said the fact that Bashir’s arrest was back on the agenda was itself good news.
“The fact that the question (of his arrest) is asked again and again is important,” he said, praising South African judges for demanding answers from the government and accusing Pretoria of violating South Africa’s constitution for failing to arrest him.
Th South African court application was the first serious attempt to have a serving head of state arrested following an ICC request.
“This is a long-haul task,” said Tilburg University’s Van Genugten. “International justice progresses step-by-step.”