The Hague – The escape of Sudan’s President from an arrest warrant demonstrates the International Criminal Court’s weaknesses, just as it prepares to venture into even more politically-charged cases in places like the Palestinian territories and Ukraine.
The Hague-based court has no enforcement powers of its own, and depends on the good will of countries to carry out its orders. Omar al-Bashir, wanted by the ICC since 2008 on war crimes and genocide charges, left South Africa in defiance of a domestic court which ordered that he stay.
Although South Africa is one of the ICC’s 123 member states, required by treaty to assist it, Bashir spent two days avoiding arrest during a summit of regional leaders, many of whom believe the court has unfairly targeted Africans since being set up in 2003.
“South Africa clearly made an undertaking to Bashir that they would not arrest him,” said William Schabas, a law professor at Middlesex University. “They were required to do it but they decided not to, which was a blow to the court.
Set up to end impunity for the worst crimes, the court accuses Bashir of masterminding genocide and other atrocities in his campaign to crush a revolt in the Darfur region. He rejects the ICC’s authority and denies the crimes.
So far, two little-known Congolese warlords are the only people to have been convicted by the court.
“South Africa was under a clear obligation to arrest this man the moment he appeared in South Africa. The fact that he was able to leave is of course disappointing,” ICC Deputy Prosecutor James Stewart told Reuters.
“It only underscores the dependence of the court on active state cooperation. States parties and others have to decide: Do they want this court to work? Do they want it to perform the mandate that they have given it, or not?”
If the court has struggled to make headway against leaders of African countries, many of which are members, it could struggle even more against non-members like Israel and Russia.
In theory, the court can prosecute citizens of non-member countries for crimes committed on the territory of members.
The Palestinian Authority joined the court at the start of this year, potentially giving the Hague jurisdiction over crimes that may have been committed on Palestinian territory, including by non-member Israel. The ICC is looking at allegations of crimes committed by both sides in last year’s conflict in Gaza.
Ukraine, which is not a member, has pledged to refer the conflict in its east to the court, which could give the ICC authority to prosecute both Ukrainians and Russians that Kiev says have participated in fighting there.
The court’s prosecutor has also said there was evidence of crimes against humanity being committed by Islamic State fighters in the territory of Syria and Iraq. It would most likely be up to the UN Security Council to refer conflicts there to the court.
In the past, from the Nuremburg courts that tried Nazi war criminals to more recent special courts set up after wars in Rwanda, Sierra Leone and Yugoslavia, powerful figures have been placed on trial only with the strong support of major powers.
Serbian President Slobodan Milosevic was turned over to the special tribunal for the former Yugoslavia after the European Union made it clear his surrender was the price for Serbia’s closer relationship with the bloc. Liberian President Charles Taylor was convicted of crimes committed in neighbouring Sierra Leone at a special court set up at the Hague at the strong urging of the United States and Britain.
The permanent ICC was meant to replace such ad hoc courts. But its investigations have not received the same international support as those of courts that were explicitly set up to deal with the aftermath of particular conflicts. Often it has ventured into investigations that big powers were not particularly keen to pursue.
In a case over crimes committed in a violent Kenyan presidential election, judges ruled that Kenya, a member state, had blocked its investigation of Uhuru Kenyatta, now president. The prosecutor finally dropped the charges in March this year for lack of evidence.
Libya has refused to hand over Saif al-Islam Gaddafi, son of deposed leader Muammar Gaddafi, judging him too valuable a prize. He has been held in Libya since 2011.
Despite its disappointing track record, the court’s strongest backers in Europe and Japan have doubled down, increasing funding this year, over the protests of Israel, which called for funding to be cut when the ICC began examining Gaza.
A Palestinian delegation comes to The Hague this month to present evidence of alleged Israeli crimes to the court. An ICC delegation will then go to Israel and Palestine.
“We try to get a first hand impression of the issues, of the perceptions, instead of relying on descriptions provided by others,” said Emeric Rogier, head of the Situation Analysis Unit in charge of the court’s preliminary examinations.
On the 11th and 12th floors of a non-descript office building in The Hague, prosecution staff plough through a monthly average of 50 public submissions about alleged crimes against humanity.
Even if Bashir has escaped this time, the court’s supporters say the case represents progress.
“Over the past 48 hours the wheels of justice were turning,” said Elise Keppler from activist group Human Rights Watch. “This is the first time a domestic judge issued an order limiting the movements of a sitting head of state because of he is wanted for serious crimes. Unthinkable 30 years ago.”
FOLLOW NEW AFRICA BUSINESS NEWS ON FACEBOOK @ New Africa Business News.com