Open letter responding to al-Bashir’s escape from justice — by Jefferi Hamzah Sendut

Dear Sirs,

It is with great regret that I note President Omar al-­Bashir of Sudan, accused of crimes against humanity, war crimes, and genocide, has once again slipped through the net of the International Criminal Court (ICC). Just last Sunday, the international community was presented what arguably constituted its best chance to bring him to stand trial in The Hague since the issue of his arrest warrant by the ICC over six years ago. Attending an African Union summit hosted by South Africa, he was subject to a landmark Pretoria High Court ruling issuing an interim injunction against his departure from the country, pending further proceedings to determine whether he should face arrest. Despite this, al­Bashir was able to leave and travel back to Sudan before the court had issued its final ruling, which was eventually seen to call for his transfer to the ICC.

As a state party to the 1998 Rome Statute which created the court, South Africa remains legally obliged to implement warrants against those indicted by the ICC. Nevertheless, the administration of President Jacob Zuma appears to have acted in contravention to both its legal, and moral responsibilities to bring an orchestrator of alleged mass killings to account. Although no evidence directly links the South African government with being complicit in al­Bashir’s escape at the time of writing, the circumstances surrounding these events suggest otherwise. They come after remarks from the ruling African National Congress party which labelled the ICC ‘no longer useful’, as well as the government’s organising of a legal team to make out a case against al­Bashir’s arrest during High Court proceedings. Moreover, the Sudanese leader was able to fly out of South Africa from the Waterkloof Air Force base­ the argument that al­Bashir somehow managed to leave through a military installation unassisted is implausible at best. The above point to deliberate action on the part of the Pretoria administration to frustrate the judicial process, and is reflective of the overall stance of the African Union in furthering the impunity of despots with no regard for the protection of human rights. Justification for this action is largely based on the premise that the ICC represents a biased, imperialist institution, unfairly targeting African leaders. I would argue that while not entirely devoid of merit, such a premise grows increasingly weaker with the court opening initial investigations into crimes in Honduras, Palestine, and Ukraine. Even if one was to accept the troubled proposition that the ICC is in fact prejudiced against African nations, this in no way justifies recent events in contravention to the rule of law. President al­Bashir remains indicted for some of the most heinous offences possible, and cannot be allowed to simply flaunt his disregard for the ICC’s authority.

While it is completely reasonable for nations to call on the ICC to ensure it maintains a global focus in pursuing war criminals, maneuvers subverting the court’s indictments only serve to undermine the institution and its core principles at a time when its renewed strength is needed the most. Founded partly in response to tragedies including the 1994 Rwandan Genocide and the atrocities which occurred in the former Yugoslavia, the continued blatant disregard for the court only serves to embolden those who would seek to commit such crimes today.

If anything good can be said to have emerged from this debacle, it is at least positive that the ICC’s efforts have not gone completely unnoticed. The injunction from the High Court on the matter came as a welcome surprise, placing renewed emphasis on the importance of the ICC’s indictments. Furthermore, the court’s final verdict to arrest al­Bashir reaffirmed efforts to bring right the injustice in Sudan, sending a message (albeit a muffled one) that the victims of human rights abuses in the South Korfordan and Blue Nile regions of Sudan can still have some hope for judicial redress. I commend the South African judiciary for its proactive action despite the circumvention of its rulings, and hope that it will continue by investigating government complicity in al­Bashir’s escape with a view to potentially bring forward a charge of the contempt of court.

The ICC must be steadfast in its resolve to bring the perpetrators of deplorable crimes to justice. For this to happen, all nations need to be seriously committed to the mission of the court in preventing atrocities and seek to reform its practices wherever possible, instead of condemning an institution with such a necessary role. The world must act­ for we have seen the consequences of inaction before, and they are far too high.

Yours faithfully, Jefferi Hamzah Sendut

Jefferi Hamzah Sendut is a dedicated HART Ambassador and the winner of the Junior Essay Category for the HART Prize for Human Rights 2015. You can read his winning entry, “To what extent is the International Criminal Court’s suspension of investigations on alleged war crimes in Sudan justified?” here. His open letter responding to al-Bashir’s escape from justice was published in ‘The Harrovian’, his school’s weekly newsletter.

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