Surprise moves to detain Sudan’s leader in South Africa make this a test case for international law which the ICC cannot afford to lose
Sudan’s President Omar al-Bashir
Detained in South Africa: Sudan’s President Omar al-Bashir. Photograph: Reuters
Sunday 14 June 2015 14.33 EDT Last modified on Sunday 14 June 2015 14.36 EDT
As surprises go, this was one for the diplomatic record books. As 50 heads of state gathered in Johannesburg for a summit of the African Union at the weekend, the international criminal court called on the South African government to arrest Sudan’s President Omar al-Bashir. A local NGO, the Southern Africa Litigation Centre, turned to the judiciary to stop Mr Bashir from leaving. On Sunday a Pretoria judge duly made an order keeping the Sudanese leader in South Africa until a final ruling is given on Monday.
Sudan’s government came out with a confident statement saying Mr Bashir would be allowed to travel back to his country, while an angry African National Congress called on the South African government to challenge the order. But the judge’s move is still a shock and a major precedent, given that Mr Bashir, who is accused of genocide, crimes against humanity and war crimes in Darfur, has not been prevented from travelling over the years across parts of Africa and the Middle East, in spite of the proceedings against him.
Hundreds of thousands of civilians died in Darfur as a result of state-sponsored violence, as well as disease and hunger. So the order against Mr Bashir is a big moment for the ICC’s reputation and for South Africa’s commitment towards international justice. It is also a test for the African Union. Mr Bashir is the only serving head of state to have been indicted by the ICC for mass atrocities. So will the African Union stand by the African victims of Mr Bashir or by the Sudanese regime?
African Union representatives have criticised the ICC in the past, claiming it has focused excessively on human rights violations on the African continent. But this is a serious distortion of its record. The ICC was an international effort to prevent any repetition of the genocide in the Balkans and Rwanda in the 1990s. More than 30 African states – including South Africa – signed up to the court’s founding act in 1998. It is 10 years since the situation in Darfur was referred to the ICC. This was not the result of unilateral western decisions but the consequence of a resolution voted by the UN security council.
Advertisement
To allow Mr Bashir to travel in and out of South Africa unhindered, without arresting him, would be a stain on South Africa’s reputation and a sign of international judicial powerlessness. But it will also have considerable bearing on how the wider fight against impunity evolves. Given the seriousness of the crimes, the case must be impartially and unwaveringly pursued.
Mr Bashir is a test case for the ICC. Its mission needs to be internationally supported. Today the focus is on South Africa, which did its duty by blocking Mr Bashir’s departure. Judge Hans Fabricius was correct to say that “When an investigation under the ICC Act is requested, and a reasonable basis exists for doing an investigation, political considerations or diplomatic initiatives are not relevant.” The victims, in other words, come first. But all 123 states who are members of the ICC have an equal duty to help. Too often, they have failed to act. They must not fail today. If the Pretoria court gives permission to detain him, Mr Bashir must be arrested and must face the indictment.
http://www.theguardian.com/commentisfree/2015/jun/14/guardian-view-on-international-criminal-court-omar-al-bashir