al-Bashir

The ICC is a joke. People have laughed at it.

South Africa formalized its withdrawal from the International Criminal Court, but it checked out a long time ago.


On June 13, 2015, one of the world’s most notorious living villains arrived in Johannesburg for an African Union summit: Sudanese President Omar al-Bashir.

Al-Bashir is the guy behind the Darfur genocide. His government, and Arab militias it supported, pillaged ethnic minority villages, raping children, poisoning wells and leaving piles of bodies. The International Criminal Court had two warrants out for his arrest for three counts of genocide and seven counts of crimes against humanity and war crimes. That means when he landed in South Africa, the police there should have arrested him immediately.

That’s not what happened. In a blue, three-piece suit, he went to the summit and hobnobbed with other heads of state. He posed for a group photo and shared a laugh with Robert Mugabe.

The ICC sent a memo to South Africa, saying, in so many words: “Hey, don’t forget, this guy is wanted, and you have to try to arrest him.” South Africa is a member of the ICC—marking a commitment to peace and justice, one of Nelson Mandela’s legacies—and apprehending fugitives is one of the key responsibilities. In fact, South Africa’s own laws required it to arrest al-Bashir. Despite all of that, nothing happened.

So an NGO went to the Supreme Court demanding it to compel the government to act. It was a Sunday, so the judges quickly issued an order: Al-Bashir can’t leave until we decide on this case.

On Monday they reconvened, and a lawyer for President Jacob Zuma’s government told the judges that al-Bashir’s seat at the African Union summit had been empty all morning. Everyone was tweeting about it. Where is al-Bashir? “He could be in the hotel room, or doing shopping, or other things,” the lawyer said. The journalists in the courtroom laughed. When the judges responded with an order to arrest him immediately, the lawyer then stood up and said, well, it was too late. “President al-Bashir has departed from the republic.”

The ICC is dead

On Friday, South Africa said it would not be participating in the ICC any longer, which is a bit like not showing up for work in 12 months and then writing to the boss, “I quit.” Their rationale is that diplomats should have immunity in South Africa for the sake of, for example, hosting peace talks.

Geneva-types are calling this a blow to human rights and a potentially lethal diagnosis for the ICC, especially after Tuesday, when Burundi’s government enacted a law saying it was leaving, too. (It hasn’t yet followed through with the requisite formality: a resignation letter to the ICC.) Add to this speculation that Kenya, Namibia and Uganda will also walk away, and the The New York Times heralded an “African exodus.”

An official one, yes. But in practice, Africa has already checked out. Al-Bashir has freely traveled to three other African states that have ratified the ICC enacting treaty, the Rome Statute: Chad, the Democratic Republic of Congo and Djibouti. He’s also been to Egypt, Algeria and Iran, all Rome Statute signatories.

But South Africa’s failure is the most embarrassing. This is a country with strong institutions and a recent legacy of forward progress. And yet its government covered for a war criminal like a kid lying for his older brother who snuck out of the house. “Um, I think he’s shopping.”

A good idea

It was 1998, and everyone believed the new millennium could be better. After two world wars, the Holocaust and a bloody litany of Cold War-related war crimes and genocides, we couldn’t afford a repeat of the 20th century. Part of the solution was a world court with the power to prosecute terrible crimes if national judiciaries refused. The ICC treaty was ratified in 1998 and went into force in 2002.

It has jurisdiction in countries and over citizens of countries that have ratified the treaty, and it only covers crimes that took place after 2002.

But the ICC was kneecapped almost the moment it was conceived. Although Bill Clinton signed the Rome Statute, he never sent it to Congress for ratification. George W. Bush was even more hostile to the court, saying it would be used politically against U.S. soldiers. Washington’s aversion to accountability helps keep the ICC impotent: If the U.S. thinks this is bullshit, why should I be involved?

African countries are rightly curious why they’ve been disproportionately targeted by the ICC. Of the 10 official investigations conducted to date, nine have been in Africa. The other is in Georgia. The ICC has preliminary investigations underway that include the legality of the United Kingdom’s invasion of Iraq, but can you imagine a Briton ever standing trial as a war criminal? The double standard has led African nations to call for an en masse withdrawal.

Another weakness of the court is that, yes, it has been used politically—what researchers Courtney Hillebrecht and Scott Straus call the “international legal lasso.” It’s not a consequence of any malice by the court, but rather of the way the court is designed: that is, it depends on the cooperation of states.

As proof, they point to the March 21 conviction of former Central African Republic Vice President Jean-Pierre Bemba Gombo. Bemba was guilty and sentenced to 18 years in prison for murder, rape and pillaging during the government’s attempt to put down a rebellion. But he may never have come to trial if not for another fact: The rebels won. And as the new rulers, they took special care to assist the ICC in sending this inconvenient opposition leader to jail.

Hellebrecht and Straus say Bemba’s conviction reinforces beliefs that the ICC is inconsistent and biased in its case selection. Worse, it might be failing its main function. “If potential perpetrators know that they can avoid judgment at the ICC either by winning or refusing to cooperate, what they learn isn’t to refrain from committing atrocities. It’s to win and stay in power, at any cost,” they wrote.

What should happen?

Two things have to happen to save the ICC. One, it must prosecute criminals who aren’t from Africa. That would be the most persuasive argument that the ICC isn’t biased. Right now, there are five preliminary examinations looking at situations in Europe, the Middle East and Latin America. It’s not clear how strong the cases are; the ICC has previously closed preliminary examinations into shelling in Korea and political repression in Venezuela and Honduras without continuing on to full investigations. The nonmembership of states like Syria, Turkey, Pakistan, Yemen and Myanmar limits the ICC’s non-African options.

At the very least, the investigation of possible U.K. war crimes in Iraq must be actually rigorous and must be seen as rigorous. “Accusations of racism, politicization and exploitation have badly damaged the ICC’s credibility. Thoroughly investigating the charges against British troops in Iraq gives one of the world’s most vital political institutions a chance to absolve itself of those,” writes Mattia Cacciatori of the University of Bath.

And two, governments and international institutions need to earn people’s respect. The rejection of the ICC is the latest variation on the theme of 2016. People don’t trust governments, and governments don’t trust supragovernments. And those higher powers have earned every bit of the blowback they’re suffering right now. The Republican Party is eating its refusal to redistribute wealth to poor, rural whites (and its decision not to reject racism), and Donald Trump happened. The European Union couldn’t restore growth after the Great Recession (or effectively manage the refugee crisis), and Brexit happened. The word treaty is beginning to lose meaning as post-war international structures come under assault by suspicious nations. And that’s not something the ICC, or anyone, can readily fix.

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