The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The President of Sudan was allowed to leave South Africa unmolested today, despite courts in the country ordering his arrest on a genocide warrant. The International Criminal Court, pursuing a case launched by the Security Council, issued warrants for Bashir's arrest years ago. Yet he has roamed the globe with impunity.
Nonetheless, he has thus far avoided ICC members like South Africa. As a state party to the Rome Statute, South Africa has a treaty obligation to cooperate with the enforcement efforts of The Hague-based court. The order by the South African judge to seize Bashir generated a massive wave of excitement in the ever-optimistic international law community. But as I predicted, South Africa did not detain him, instead allowing him to return to Khartoum.
The free pass given to Bashir is another in a series of major blows to the credibility of the ICC—and in this case, the Security Council. If member states like South Africa do not take the Court seriously in cases that do not even involve its own nationals, it is hard to expect non-members to do so.
While refusing treaty obligations to arrest the world's leading genocidaire—known of course for his campaign against black Africans in Darfur—might seem unconscionable, Bashir has his defenders.
Among them is Palestinian President Mahmoud Abbas, who vocally opposes the ICC process against Bashir. "We must also take a decisive stance of solidarity alongside fraternal Sudan and President Omar al-Bashir," Abbas has said. He has has also expressed his "solidarity" with the Sudanese despot, and categorically rejected enforcement of the ICC warrant.
The Palestinian Authority is not alone in this—the entire Arab League backs Bashir against the ICC. But what makes the PA's position on Bashir even more outrageous is that they have actually purported to join the ICC, and seek to invoke its jurisdiction against Israeli officials. The only other Arab League members to join the ICC are Comoros, Djibouti, and Jordan, which has distanced itself from the Bashir policy, unlike the PA.
Thus even as the Palestinians got the ICC to bend its rules about statehood to join, they were advocating the defiance of the Court's writ in the single most important and grave kind of case, genocide cases initiated by the Security Council. In short, the Palestinians seek to exempt genocidaires from the Court's jurisdiction while pushing for it to prosecute Israelis for allowing Jews to live in Jerusalem. The PA is involved in the trivialization and corruption of the Court from both ends.
The international community tolerates this hypocrisy, and the Bashir debacle is among the consequences.
Pretoria's allowing Bashir to visit, and to leave unmolested is move is particularly striking because South Africa has a reputation as being a vocal advocate of international norms, and strongly applying them within its own domestic system. Moreover, South Africa's ANC regime continues to enjoy an air of special post-Apartheid moral authority in the international community. These are supposed to be the good guys.
Yet few other countries reflect the Palestinians' warped view of international law as South Africa. It has become one of the Jewish State's most vocal critics, always couching its criticisms in language of law and rights, while embracing monsters like Robert Mugabe, scourge-for-life of neighboring Zimbabwe. One cannot be struck by the number of South Africans, especially jurists, at the forefront of international legal efforts against Israel (especially at the U.N.) including seeking prosecutions at the ICC—Richard Goldstone, John Dugard, Navi Pillay, Desmond Tutu.
It is not that South Africa does nothing to show that it cares about international law. Indeed, it recently required Israeli products from the West Bank to bear special labels, after pressure from Palestinian groups. The government said the action was required by international law, a position rejected by courts around the world, and generally without legal merit. South Africa's obligation to arrest Bashir was a lot more clear.
So its easier for a crate of Jordan Valley dates to get served with process for war crimes in South Africa than the perpetrator of one of the world's greatest genocides. Indeed, the country's deputy foreign minister recently called on South Africans to not visit Israel. But visits from genocidal dictators—well, lets not have the best be the enemy of the good.
Ironically, Bashir's impunity may only push the ICC to take a harder line on Israel. One would think that genocide, supposedly a jus cogens offense, would generate enough international consensus and pressure for its prosecution to get a fugitive arrested, at least in a country that prides itself as a bastion of normative power. But apparently genocide is not enough. So the ICC Prosecutor will cast about for a role that will make the Court generally useful and appreciated by the international community—to seek out the lowest common denominator of international demand for prosecution. And that's not prosecution for genocide, but for houses for Jews in Jerusalem. Even the Palestinian Authority and South Africa can get behind that.
And then it will be useful to remember the statement of South Africa's long-time ruling party yesterday, declaring the ICC irrelevant: "The ICC is no longer useful."