When the International Criminal Court was established in 2002, there was little doubt that the theory behind it was noble. The multilateral treaty that resulted in the court, the Rome Statute, had set out a number of international crimes such as genocide and crimes against humanity. The Hague-based court was designed to step in, investigate and prosecute when states were "unable" or "unwilling" to do so themselves.
Unfortunately, the reality of the court has been more difficult. Consider what's going on now in South Africa, where Sudanese President Omar al-Bashir attended an African Union summit and flew out on a private jet Monday. Since 2009, the ICC has sought Bashir's arrest for a range of crimes, including genocide, relating to the conflict in Darfur. As a country that has signed the Rome Statute and is in the ICC's jurisdiction, South Africa was technically obligated to arrest Bashir.
Instead, in spite of a travel ban while judges at Pretoria High Court examined the ICC arrest warrant, he escaped.
Bashir's exit from South Africa and South Africa's apparent hesitance to arrest him fit into a broader problem the ICC has: The huge levels of skepticism and outright lack of trust the court now has among African leaders and, to an extent, the general public. In a statement released Sunday, before Bashir exited the country, South Africa's ruling African National Congress party plainly suggested that the ICC was biased against Africans, and that it was "no longer useful for the purposes for which it was intended."
This isn't a unique perspective. Bashir, who has refused several requests to visit the court to face the charges against him, has declared the ICC "a tool to terrorize countries that the West thinks are disobedient." Other African leaders have expressed support. "The court has transformed itself into a political instrument targeting Africa and Africans," Tedros Adhanom Ghebreyesus, the Ethiopian foreign minister, said at an A.U. summit in 2013.
Nor is it an entirely unreasonable perspective. Of the nine situations the court is officially investigating, all are in Africa. Every one of the 32 individuals indicted by the court so far are African. Clearly, that does seem a little unfair, but experts attribute this to factors such as the way the court is set up and the high number of conflicts on the continent.
The case file against Sudanese President Omar al-Bashir is pictured on the court bench at the North Gauteng High Court on June 15, 2015, in Pretoria, (Mujahid Safodien/AFP/Getty Images)
"The ICC definitely has a credibility problem in Africa, and, at first glance, the criticism that the court has focused too much on African states is a fair one," says Jeffrey Smith, an Africa specialist at the nonprofit Robert F. Kennedy Center for Justice and Human Rights. "This argument, however, fails to acknowledge that independent tribunals in the former Yugoslavia and Cambodia, to take but two recent examples, have thus far led to a natural reduction in the ICC's scope."
African states also signed the Rome Statute en masse, granting the ICC jurisdiction. This didn't happen elsewhere in the world: Many Middle Eastern states did not sign, for example, and major countries such as Russia and the United States signed but did not ratify the treaty (which makes the State Department's statement about Bashir on Monday a little awkward). Sudan did not sign the Rome Statute, but the ICC didn't choose to investigate it on its own: The investigation was requested by the U.N. Security Council.
"It's important to remember that, for the most part, the ICC does not select its own cases," explained Kate Cronin-Furman, a lawyer and PhD candidate at Columbia University who has worked at The Hague. "So while it's true that all eight of the countries with open ICC investigations are located on the African continent, half of them [Uganda, Congo, the Central African Republic and Mali] asked for the court's involvement. An additional two (Libya and Sudan) got there through action of the U.N. Security Council. It's only the Kenya and [Ivory Coast] cases that were opened through the prosecutor's own initiative."
The focus on Africa may be due to these practical considerations, but it has clearly created a negative impression of the court in Africa. "The most horrific mass atrocities in recent years have taken place outside of Africa, and the ICC simply is not there," said Leslie Vinjamuri, director of the Center for the International Politics of Conflict, Rights and Justice (CCRJ) at the University of London's School of Oriental and African Studies. The ICC would need U.N. Security Council intervention to investigate war crimes in Syria, Vinjamuri points out, but it has not received it.
"It's not a good position to be in," Vinjamuri says. "When you find yourself in a situation where you are justifying bad outcomes on the basis that they follow the rules, then it is probably time to change the rules."
It's hard to deny that these optics have hurt the ICC's credibility in Africa. "Many Africans look at the prosecutor, Fatou Bensouda, and laugh outright that she poses as a paragon for legal virtue given that, while an African and a woman, she served as minister of justice for a literal tin-pot dictator, Yahya Jammeh of Gambia," said J. Peter Pham, director of the Africa Center at the Atlantic Council. The fact that a white South African judge of Afrikaner descent ordered Bashir's travel ban only made things worse, he said.
"Appearance alone just reinforces the stereotype of a runaway court out to get Africans," Pham added.
Still, despite the court's problems, self-interest likely plays a role for some of the ICC's greatest African critics, too. It was only after the prosecution of heads of state such as Bashir and Kenyan President Uhuru Kenyatta that the A.U. began to forcefully criticize the ICC.
"African leaders have had few complaints when the court goes after rebels or militia leaders in Uganda or the Democratic Republic of Congo," said David Bosco, an assistant professor at American University's School of International Service and author of a book on the ICC called "Rough Justice." "It's the pursuit of senior government officials that has provoked the tension."
Kenyatta in particular was able to portray the case against him as slanted and imperialistic, and it's likely that played some role in the case's subsequent collapse late last year. (Critics have also suggested that Kenyatta, as a head of state, was able to manipulate evidence and witnesses in a way that made a case impossible; the Kenyan president has always denied the charges against him.) It's worth noting that since its inception in 2002, the ICC has convicted only two minor warlords.
Bashir has traveled to ICC states without arrest before, but the South African situation was especially fraught as the country is both a regional power and a rare voice of support for the ICC within the A.U. In 2009, South Africa invited Bashir to attend President Jacob Zuma's inauguration, but after outcry from activist groups, South African officials said Bashir would risk arrest if he entered the country. (In the end, Bashir did not go.)
As host of the 25th A.U. summit, South Africa was put in a very difficult position by Bashir. "Refusing Bashir entry or arresting him during his stay would have provoked a diplomatic crisis for South Africa with a number of other A.U. members," Bosco notes. Allowing him to enter and leave the country may have avoided that crisis, but it's far from an ideal situation for Bashir. Just hours after the Sudanese leader left the country, the court in Pretoria came to a decision that the Sudanese president should be arrested. It seems likely that Bashir may not ever return to South Africa.
To the ICC, that's a small but important victory. "I think that what happened over the past couple of days, and in particular today, demonstrates that an ICC warrant of arrest actually means something, and clearly the court in South Africa took that view," ICC deputy prosecutor James Stewart told Reuters.
It is possible that perspectives could change. While some on social media argued that Bashir's flight was a blow against the anti-African bias of the ICC, there were also many from Africa who argued that even critics of the court should want to see Bashir on trial.
"Shameful," Sisonke Msimang, a South African journalist, wrote during a series of messages posted to Twitter on Sunday. "ICC has many problems but Omar al-Bashir has a case to answer [and the] people needing answers are all Africans."
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