By Mark Kersten*
The campaign against Omar al-Bashir racked up an impressive win this week. In the latest development in an ongoing legal tug-of-war, the South African Supreme Court of Appeal ruled that the government of South Africa had acted unlawfully when it refused to detain and surrender Bashir to the International Criminal Court (ICC) during a visit to the country last June. The landmark ruling clarifies the legal obligations that states have towards the ICC and could have significant repercussions beyond South Africa. But will this impressive victory bring Bashir any closer to facing justice for his alleged responsibility for mass atrocities in Darfur?
Just days before the Supreme Court of Appeal’s ruling, Bashir made yet another state visit, this time to Indonesia. Coinciding with the seventh anniversary of the first arrest warrant issued by the ICC for the Sudanese president, Bashir’s trip to Jakarta also marked his seventy-fifth foreign foray since he was indicted for war crimes and crimes against humanity. Bashir’s gallivanting undermines one of the key arguments in favour of international criminal justice: that ICC arrest warrants marginalise their targets. But what is particularly irritating for proponents of the ICC is the international community’s deafening indifference to Bashir’s increasingly brazen travels in contravention of the ICC’s warrants.
The failure to arrest al-Bashir and his absence from the ICC’s dock has been one of the most stinging and substantial critiques of the ICC’s credibility. Importantly, however, this logic assumes that the Court is actually prepared to put Bashir on trial on genocide allegations — an assumption that is far from evident. Indeed, no one can know right now that the Bashir case would not go the way of the trial of Kenyan President Uhuru Kenyatta, which collapsed due to a combination of political pressure, interference with witnesses and poor case construction on the part of prosecutors at the ICC. Given that the case against Bashir was built prior to Kenyatta and that not a single staff member, let alone ICC investigator, has stepped foot on the territory of Darfur in the ten-plus years since the situation there was referred to the Court by the UN Security Council, it is at least worth being somewhat sceptical that nabbing Bashir would be an immediate and easy win for the ICC.
States increasingly silent
What truly undermines the legitimacy and relevancy of the ICC isn’t the fact that Bashir isn’t in the dock, but the fact that states are increasingly silent with regards to justice and Bashir’s responsibility for mass atrocities in Darfur. Beyond commentators and human rights groups, few members of the international community insisted that Bashir had to be arrested by South African authorities. And none will now line up to praise or support the Supreme Court of Appeal’s judgement or its ramifications. In response to Bashir’s trip to Indonesia, the international community was again eerily quiet. The United States, a long-time champion of justice in Darfur, simply said that it was “concerned” about Bashir’s visit. The Sudanese Embassy in Jakarta’s terse reply that the US should either join the ICC or “shut up” really wasn’t necessary given the meek response of Washington to Bashir’s trip. But here is the inescapable, if sad, truth: whatever it was that used to bother states like South Africa and Indonesia enough to reject Bashir from travelling to their capitals, no longer does. Worse than states wanting Bashir to visit is the reality that states simply no longer mind if he does.
In 2014, ICC Chief Prosecutor Fatou Bensouda responded to the international community’s apathy by informing the Security Council that she was “hibernating” her investigations in Darfur…. A number of victims followed suit, declaring that they had given up on seeing any ICC justice for the violence perpetrated against them. In reality, the investigations had been far down the list of priorities long before Bensouda’s dramatic announcement. But the decision, while widely and rightly praised, hasn’t been met with any galvanising interest in arresting Bashir. It seems, on the contrary, that on the Bashir file, the international community has long settled into its own hibernation.
Fight against impunity
This is, of course, a rather dour and pessimistic assessment. But it is inescapable that the ‘fight against impunity’ in Darfur and the case for taking Bashir to the ICC is at an impasse. This is not a reason or excuse for anyone to hibernate their interest in pursuing accountability for the horrendous crimes in Darfur. What the brave lawyers and advocates in South Africa have managed to achieve this week is nothing short of remarkable, a rare victory for David over Goliath. But it is important to remember that this is a victory borne of failure. Had international human rights advocates been successful in their campaigns to ensure Bashir’s isolation, the Sudanese president would never have travelled to South Africa, and the single most important development in the campaign against him - this week’s Supreme Court of Appeal’s ruling - would have never come to pass.
The broader constellation of actors who want to see justice for crimes in Darfur needs to rethink what they can do to achieve any justice for atrocities committed in Darfur. In addition to some introspection into how, ten years after the Darfur situation was referred to the ICC, zero justice has been meted out. What is needed is smart, fresh, and creative thinking. Despite this week’s landmark ruling, right now that community of actors is losing the battle. That isn’t entirely their fault but placing all the blame on states isn’t good enough either. Most importantly, continuing the same tactics will almost surely be fruitless. To evoke Einstein's famous observation, doing the same thing over and over while expecting a different result is the definition of insanity.
Courtside Justice is a bi-monthly column by Mark Kersten, the creator of Justice in Conflict
, looking into the politics and dilemmas of international justice.