The international human rights community may have breathed a sigh of relief at South Africa’s announcement in March 2017 that it would revoke its attempt to leave the International Criminal Court (ICC), but there are likely more reasons to worry than rejoice. Beyond South Africa’s flagrant disregard for its obligations under the ICC and the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), South Africa’s actions expose the various weaknesses of the ICC: namely its inability to enforce its decisions.
As a member of the Genocide Convention, along with 148 other countries, Article IV makes clear that persons committing genocide or crimes against humanity will be punished, even if that person is a public official. Facing increased scrutiny and condemnation by the ICC, South Africa announced its intent to withdraw from the ICC in its entirety in October 2016. Some African leaders have called the ICC “an instrument of modern colonialism,” as all prior ICC rulings have convicted Africans. This is the reason cited by South African and other African leaders for their own attempts to abandon the body. The African Union issued a resolution in early 2017 expressing its approval of mass withdrawal from the ICC, but Burundi is the only country that has formally withdrawn to date (The Gambia came close to withdrawing as well but rescinded its declaration of intent to withdraw).
Sudanese President Omar Hassan al-Bashir has managed to evade an international arrest warrant since 2009. He is accused of genocide and crimes against humanity in the Darfur region of western Sudan. In 2003, Bashir ordered a counterinsurgency against minority non-Arab rebel groups, which brought an estimated 300,000 deaths, over two million persons displaced, schools bombed, wells poisoned, and countless women and girls raped. Since then, it is reported that Bashir has crossed international borders 131 times and visited fourteen countries that are members of the ICC, including the 2015 visit to Johannesburg for an African Union meeting.
It is often the case that states, when faced with international conflict or scrutiny, profess that domestic law trumps international obligations. Under the 2002 Rome Statute, which established the ICC, “countries are obligated to arrest anyone sought by the tribunal. Yet according to South Africa’s Justice Minister Michael Masutha, the Rome Statute ‘is in conflict and inconsistent with’ South Africa’s law that grants diplomatic immunity to visiting state leaders. Rather than accepting its responsibilities under the Statute, South Africa’s government instead submitted a bill to Parliament to withdraw from the ICC in its entirety. The International Criminal Court rejected this “thin argument” ruling in July 2017 that South Africa had “in brazen defiance of the ICC warrants…flouted its duty to international law” by failing to arrest Bashir (the State hurried Bashir to a plane back to Sudan while domestic courts were ruling on whether to arrest him).
South Africa’s attempt to withdraw from the ICC was stymied by its own courts. The High Court ruled that the attempt was “unconstitutional and invalid,” as it was done without Parliamentary consultation and approval. While South Africa’s failure to unilaterally abandon the ICC could be seen as an indication of the Courts’ strength (it was generally thought that a flood of other states would follow South Africa’s lead), the specific plight of the Bashir case in actuality underscores the Court’s inability to impose its rulings. Multiple arrest warrants have been issued against Bashir, yet he has managed to freely travel between and within countries that are members of the International Criminal Court. The ICC’s Chief Prosecutor, Fatou Bensouda, specifically points to the United Nations’ failure to publicly condemn six ICC member-countries where Bashir has traveled. By failing to truly support enforcement of ICC rulings, the international community is allowing continued impunity for those who have committed major war crimes and failing the millions of victims who have suffered Bashir’s genocide. It is vital that international stakeholders, such as the United Nations Security Counsel, increase its collective pressure on states providing sanctuary to such criminals, rather than sending a message that those who commit genocide can enjoy long-enduring exemption from justice.