Al-Bashir’s indictment and limitations of ICC authority

That President Omar Hassan al-Bashir of Sudan left South Africa Monday without facing arrest on charges of war crime raises further questions as to whether the International Criminal Court (ICC) is living up to its mandate and facing the reality of its limitations.

The ICC was created in 2002 with an audacious mandate: to go after the biggest perpetrators of crimes against humanity, and those who commit genocide. But so far, it seems, the arm of international law has been able to reach only those who have few powerful friends to protect them. The case against Mr. al-Bashir starkly illustrates the court’s profound limitations.

Mr. al-Bashir on March 4, 2009 became the first sitting head of state to be indicted by the ICC when Pre-Trial Chamber I issued a warrant for his arrest. The decision to issue the warrant of arrest followed an application made by the prosecutor of the ICC, Luis Moreno-Ocampo on 14 July 2008.

 In its decision of 4 March 2009, the Pre-Trial Chamber indicted al-Bashir as an indirect (co-) perpetrator for five counts of crimes against humanity (murder, extermination, forcible transfer, torture, rape) and two counts of war crimes (direct attacks on civilians and pillaging).

Although the majority of the chamber found that the prosecutor had failed to provide reasonable grounds to prove the specific intent required for genocide, they found sufficient evidence to believe that al-Bashir coordinated a five-year counter-insurgency campaign, a core component of which was the unlawful and intentional direct attack on the Fur, Masalit and Zaghawa civilian population.

On 12 July 2010 Pre-Trial Chamber I of the ICC issued a second warrant of arrest against al- Bashir, considering that there were reasonable grounds to believe he was responsible for three counts of genocide committed against the Fur, Masalit and Zaghawa ethnic groups, that include: genocide by killing, genocide by causing serious bodily or mental harm and genocide by deliberately inflicting on each target group conditions of life calculated to bring about the group’s physical destruction. The second arrest warrant did not replace or revoke, in any respect, the first warrant of arrest issued against the Sudanese leader.

The court can indict even sitting heads of state, as it did with al-Bashir. But it has no power to handcuff them and put them in the dock. Instead, it relies on other heads of state and governments to act as its sheriffs around the world. But in the last six years, many nations, including Nigeria, have let al-Bashir flout the court’s arrest warrant.

Monday was a case in point as South Africa let al-Bashir fly home despite an order from the country’s High Court instructing authorities to prevent him from leaving the country. But the South African government acted lawfully in compliance with an AU protocol prohibiting any African leader from acting in any way detrimental to the interest of brother leader. The challenge then is should South Africa act in defiance of this AU policy or defer to the ICC.

For Alex Whiting, a former attorney with the ICC prosecutor’s office and law professor at Harvard, given its constraints the ICC will only be as relevant as the international community allows it to be. The truth is that the ICC is meant for the weak and those prone to instability and civil strife as the major nations including the U.S, are not signatory to the Rome Treaty.

South Africa was merely the most recent country to let al-Bashir visit and leave without arrest. It was a reminder, Whiting argued, of how hard the court must work to overcome the perception that it is targeting only Africans — and a reminder of how justice cannot be meted out unless the world powers invest in it. It would be recalled that Kenyan President Uhuru Kenyetta was hounded by the ICC to appear before over post election violence in 2010, making him the first sitting president to appear before it.

“Bashir will ultimately be arrested,” he said, “only if the Security Council and countries like the U.S. and other important actors undertake a sustained effort to prioritize his arrest and make it a central part of their diplomatic efforts.”

But while the United States can pressure other nations to act, it faces a major credibility problem of its own. Unlike dozens of African nations, some of the world’s most powerful countries, including the United States, Russia and China, have not even joined the ICC, officially refusing to submit to its authority.

In 2011, al-Bashir visited China, where he was greeted by an honor guard and he met with China’s president at the time, Hu Jintao. Al-Bashir called him “a friend and brother.” China is a major trade partner of Sudan.

Experts believe the latest al-Bashir drama further weakened the authority of the court, through no fault of its own. It was set up in such a way that the world’s most powerful countries were able to keep themselves and their allies out of its reach. This explains why African leaders assert that they have been unfairly and disproportionately targeted by the court. The ICC is weakened because major political powers have not embraced it.

The court has issued 30 arrest warrants but won only two convictions. Many, like al-Bashir, have eluded arrest.

The U.N. Security Council referred the crisis in Darfur, Sudan, to the international court in 2005, leading the prosecutor to indict al-Bashir on charges of war crimes, crimes against humanity and genocide. But since then, the Security Council has done little to help the court get hold of him, even after he traveled to countries like Kenya, Chad and Nigeria, evading arrest.

Chad and Nigeria, both U.S. allies, were elected as temporary members of the Security Council. Al-Bashir’s powerful allies, China and Russia, are permanent, veto-wielding members of the Security Council.

The court has secured the arrests of lesser-known figures, most recently a man it had all but given up on: Dominic Ongwen, a Ugandan rebel commander who is charged with a long list of war crimes.

It is also prosecuting a former president of Ivory Coast, Laurent Gbagbo, and says the trial of Bosco Ntaganda, a rebel leader charged with war crimes in the Democratic Republic of Congo, is scheduled to start in mid-July. It had earlier convicted Mr. Charles Taylor of Liberia.

Other international tribunals separate from the international court, have convicted top leaders implicated in war crimes in Rwanda, Sierra Leone and the former Yugoslavia. Still, the court has become a major point of international contention, in large part because world powers have used it selectively to advance their own interests.

Last year, France sought to persuade the Security Council to refer the situation in Syria to the court, a bid that was backed by the United States but vetoed, as expected, by Russia, an ally of the Syrian government.

The Palestinians have used the court to advance their cause. They joined the court in December as part of their effort to pursue statehood in the international arena after decades of failed negotiations with Israel. France, usually an enthusiastic supporter of the court, publicly said nothing in support of the Palestinian decision, while the United States was unequivocally critical.

The court’s reputation for neutrality came under attack after it indicted al-Bashir and his counterpart in Kenya, Uhuru Kenyatta, in connection with the violence that swept his country after the 2007 elections. The court was accused of bias against Africa, a charge that its chief prosecutor, Fatou Bensouda, a Gambian, has forcefully denied.

Still, the African Union pledged not to cooperate with the court on cases against sitting heads of state. In December, Bensouda announced she would drop the charges against Kenyatta, citing his government’s lack of cooperation. That month, she also said she would suspend the genocide case against al-Bashir, blaming the Security Council for not helping her secure his arrest.

However, the court has been looking beyond Africa in recent years. Bensouda has opened a preliminary examination into the role of British soldiers in Iraq. She has said she is looking into allegations of torture by U.S. soldiers in Afghanistan, though she is far from opening an official investigation.

The Palestinian issue is by far the trickiest. The prosecutor must decide whether to investigate allegations of war crimes committed by Palestinians or Israelis during the 2014 Gaza war, the expansion of Israeli settlements or both issues.