Bashir was in South Africa to attend an African Union summit. Because South Africa is a member of the ICC, it was obligated to arrest him on the two outstanding warrants—one from 2009 and one from 2010—against him. South Africa’s High Court court ruled on Sunday that he shouldn’t be allowed to leave the country until it finished deciding on the obligation to arrest him. Monday morning, Bashir’s plane took off from Pretoria without obstruction, bound for Khartoum. A few hours after that, the court ruled that he should have been held.
“The government’s failure to arrest Bashir is inconsistent with the Constitution,” Judge President Dunstan Mlambo said.
But of course by then it was too late. Six years after the ICC first issued a warrant for Bashir, this was the closest he’d come to being arrested. Now the court’s champions and detractors alike are saying his near-miss is a serious blow to the court’s standing. “South Africa has been a traditional defender of the ICC and has previously insisted that it would arrest Bashir if he stepped foot on its territory,” wrote Mark Kersten, a researcher at the London School of Economics who studies criminal justice and conflict resolution. “His visit to South Africa with impunity seemingly sent a powerful signal that the ICC’s indictment no longer constrains his movements.”
The high court’s ruling does likely mean that Bashir won’t be able to return to South Africa, since he’d face arrest there. And the fact that the court moved against him is a sort of progress. Since the ICC warrant was issued, he’s visited numerous other member countries, only to have them refuse to act, including Chad, Kenya, and Nigeria.
Opinion about the ICC has shifted in Africa since it was chartered in 1998. Initially, it had strong support—particularly in the aftermath of the Rwanda genocide, Mbaku has written, when “there was an urgent need in Africa to squarely confront impunity and the mass violation of human rights.” Since then, some governments and thinkers have apparently revised their opinions.
One reason is that every indictment issued by the ICC has been in Africa. The court’s jurisdiction is somewhat hobbled by the non-participation or non-cooperation of many countries, most notably the United States. But the fact remains that Africa has been the focus of a court based in Europe, and given that memories of colonialism are in some places still fresh and very raw, that raises hackles.
Add to that the fact that while the court can mete out an abstract sort of justice, it has little power to make things right for victims. It’s all well and good to lock up a perpetrator, but it doesn’t do much to restore the damage. When those trials happen in The Hague, far away from where the crimes were committed, there may be little chance for many victims to take part in the proceedings anyway.