The whole debacle lasted only two days, but the legal and political chaos it produced will probably continue for far longer. The moment a >South African court ruled that Sudanese president Omar al-Bashir should not be allowed to leave South Africa where he was attending the African Union summit, and succumb to the ICC arrest warrant for war crimes, furious speculation and anticipation began. Was it possible? What were the legal ramifications for South Africa if it did arrest him? What were they if it didn’t? Had Mr. Bashir miscalculated, complacent in the view that the ICC was toothless? Even though it seemed very unlikely that he would ever be arrested, for a brief moment wishful Sudanese suspended their disbelief and cynicism, and thought that it might just happen.
It didn’t of course. Mr. Bashir is now >safely back in Khartoum , where he took a very public victory lap. The whole episode was an embarrassment for everyone: the South African judiciary and executive for being out of step, Mr. Bashir for not being able to step out of his own country to sit among other Africans without being jittered by fear of arrest, and the ICC, for the snub it has received.
Mr. Bashir has come to represent the confusion of international law over crimes perpetrated by sitting heads of government, and the merits (or lack thereof) of the arrest warrant cannot be discussed without raising the “African bias” point. To argue against Mr. Bashir’s indictment and arrest is to engage in Olympian feats of whataboutery — the crux of which is: if your white western war criminals are roaming free, then we reserve the right for ours to roam free as well. Ignoring the obvious self-harming failure of this logic for one moment, there is something to be said against the obvious lopsided justice meted out by our supranational legal organisations.
It is the cry of the troll everywhere that there is embedded bias in a dominant value system that has been forged by imperialist victors. But as diversionary as that reasoning is most of the time, in this instance that is fundamentally the reason why the international criminal court cannot mobilise a manhunt for Mr. Bashir in many of the non-western countries he visits. The Sudanese people are not only victims of Mr. Bashir, but also victims of a world where the justice system accommodates a sovereignty class system. The U.S. has not even ratified the Rome statute that established the ICC, effectively marking its territory as a super sovereign whose actions do not succumb to any legal value system other than its own.
That obviously should not mean that we do not impart justice when we can, but it does mean that, as the case in South Africa shows, you will get clashes between the idealistic formal endorsement of the ICC by the judiciary, and the informal dismissal of it by the executive. Moreover, there is a pan-African solidarity playing out here, one that is based on the view that en bloc, Africans are disproportionately censured for their records in power. This support for Mr. Bashir as a function of realpolitik is a dirty shameful business that verges on apologism, and it is nothing that he should be celebrating. But the law by its very nature should be a single benchmark, otherwise it is not law, it’s an opinion.
It is not the fault of the ICC that it exists in an imperfect world where the powerful can opt in and out of human rights. Ideally, Mr. Bashir would be standing in the dock today with all other heads of state that have perpetrated illegal wars, but until that happens, the court has no mandate, and the Sudanese people will continue to suffer the double whammy of international sanctions against them for having a government they have had no say in choosing, and a president that they cannot enlist outsiders to eject because the willpower to arrest him cannot be reasonably summoned in the face of exceptionalism.
Mr. Bashir has not escaped justice because South Africa was weak, nor did he get away because people do not believe that he is responsible for presiding over a government that has savaged the Sudanese people with impunity. He got away because without universal jurisdiction, there can be no individual enforcement. — © Guardian Newspapers Limited, 2015
