How a Suspected War Criminal Got Away

Omar al-Bashir’s escape from South Africa and the dilemma of the International Criminal Court

The conviction of Charles Taylor seems like a signal triumph for international courts. The former Liberian president was caught after fleeing justice, tried in the Hague, convicted of war crimes and crimes against humanity, and sentenced to 50 years in prison. The system worked.

Or did it? Traveling in Liberia recently, John Mukum Mbaku, a nonresident senior fellow at the Brookings Institution and a professor at Weber State University, heard rumors than Taylor was actually in cahoots with the CIA and living it up outside of prison. But you could see the trial on TV, he protested. Oh sure, came the reply. But you can put anything on TV—that doesn’t make it real.

That might seem conspiratorial, but in a nation where institutions can be corrupt, incompetent, or both, it’s not surprising. It also offers some insight into the bizarre near-arrest and ultimate escape of Sudanese President Omar al-Bashir this week.

Bashir is one of the world’s most wanted men, with charges of war crimes, crimes against humanity, and genocide leveled against him by the International Criminal Court, in connection with violence in Darfur in the 2000s. By visiting South Africa, Bashir tempted fate, but he managed to get away thanks to a combination of division among South African authorities and a general ambivalence about the ICC throughout the continent.

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.

Taylor’s trial was not in the ICC but in the Special Court for Sierra Leone, though the trial was moved to The Hague for security reasons. But to Mbaku, it demonstrates the flaw in international justice systems like the ICC.

“The international community pats itself on the back that they were able to force Charles Taylor to stand up for what he did, but in terms of looking at the big picture, I don’t really see what the benefits are for the people of Liberia and the people of Sierra Leone,” Mbaku told me in an interview.

While Bashir’s indictment in 2009 irked many African leaders, the indictment of Uhuru Kenyatta, now the president of Kenya, for crimes against humanity during post-election violence in 2007 and 2008, seems like it was a breaking point. The indictment was widely criticized by African leaders. The African Union has argued that no sitting head of state should be prosecuted by the ICC. In December, the ICC withdrew charges against Kenyatta, citing the inability to acquire evidence.

There’s a clear problem with the African Union’s proposal: Bashir has been Sudan’s leader since 1989 and there’s little suggestion he’ll leave unless either his health or a coup forces him. He’s basically empowered to act with impunity within Sudanese borders, even if the universe of countries to which he can travel is ever-shrinking. But the South African government took a similar position to the AU before High Court, saying its agreement to grant immunity to visiting heads of states trumped its obligations under the ICC. The court disagreed—but by then Bashir was gone. And the government’s skeptical view of its ICC obligations shows the danger of ambivalence toward the ICC through the continent.

“If you are an African, you know that African countries are not currently able to deliver justice. The question is, who is going to deliver it?” Mbaku said. For now, there’s simply no alternative to the ICC, but “this should not be a long-term solution. Each African country should be able to develop its legal system so that it would administer justice at the local level.”

That would certainly sidestep the problem of relying on the whims of the South African or Chadian or Nigerian government to arrest a leader like Bashir. Building institutions and rule of law to achieve that will take years or decades. On the other hand, the ICC doesn’t seem to have much power to bring Bashir to justice either.