Margaret Thatcher once advised those delegates to the United Nations who criticize the organization for being weak to look in the mirror for the explanation. International law is much the same: If you want to know why governments so often fail to respect it, all you have to do is step back for a moment and consider that governments are responsible for lawfulness; international judicial bodies such as the International Court of Justice and the International Criminal Court (ICC) have no policing power to enforce the law. Those courts must rely on the governments that created them and on the moral force that international legal authority represents.
Last week in South Africa, international law experienced a serious setback when its government refused to arrest Omar Hassan al-Bashir, the president of Sudan since October 1993 and a wanted man. The ICC issued arrest warrants for al-Bashir in 2009 and 2010 for crimes against humanity (five counts), war crimes (two counts), and genocide (three counts), all committed in the conflict in Sudan’s Dofar region. Bashir was attending a meeting in South Africa of heads of state of the African Union, believing he had immunity from seizure just as he had when he attended other events outside Sudan in recent years. But the South African government, a signatory to the Rome Statute that established the ICC, was obliged to arrest him and turn him over to the ICC for trial.[1]
South Africa’s high court ruled on June 15 that the government was bound by the constitution to detain al-Bashir. But by the time it ruled, according to various reports, the South African government had allowed him to board a private plane and return home. Photos showed him receiving a hero’s welcome—staged, no doubt, but still a happy escape for a tyrant. This act of the South African government could never have happened under Nelson Mandela, but it has happened now, and deserves international condemnation.
As so often happens in international affairs, law is subject to political priorities. There is no question that al-Bashir should have been arrested in accordance with the ICC warrant and brought to The Hague to face trial. But other African states have rejected the ICC’s jurisdiction, arguing that only African leaders have been indicted. That is factually correct: nine African leaders have been indicted by the ICC, but other criminals outside Africa, such as Assad in Syria, have not been. (The ICC has begun a preliminary inquiry into war crimes committed by Israel in the Gaza war last year. But both Israel and Hamas have rejected the inquiry and refused to allow investigators entry into Israel or Gaza. See www.nytimes.com/2015/06/23/world/middleeast/israel-gaza-report.html.)
Surely the question of bias deserves investigation, and just as surely the ideal situation would be strengthened rule of law in Africa such that leaders who commit or condone mass violence are brought to justice in their own countries. But those possibilities cannot excuse well documented, large-scale violations of international law anywhere, whether by a sitting or former heads of government (www.straight.com/news/474301/gwynne-dyer-omar-al-bashir-and-international-law).
The US is once again in the position of lacking credibility to speak out on a matter of international law because it has not signed or ratified the relevant document. (Signers number 123 countries; Sudan is not among them either, but since al-Bashir is a UN-designated war criminal, Sudan’s outlier status doesn’t matter.) Thanks to the George W. Bush administration, the US did not sign the Rome Statute for fear that US officials or soldiers might be indicted for war crimes or crimes against humanity. A poor excuse indeed; and it now leaves Washington without a voice on a matter of great importance to huge numbers of innocent victims of officially-approved violence.
In closing, I’m led to wonder: Suppose this were 1939, and an international criminal court existed. Suppose further that the court issued an arrest warrant for Adolf Hitler, for crimes against humanity and genocide. If Hitler had ventured outside Germany, would any government have detained him and sent him to The Hague for trial? You think so? I’m not so sure.
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[1] Article 59 of the Rome Statute states in part: “A State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9. . . . A person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, [that proper procedures were used]. . . . It shall not be open to the competent authority of the custodial State to consider whether the warrant of arrest was properly issued . . . . Once ordered to be surrendered by the custodial State, the person shall be delivered to the Court as soon as possible”
(www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf.)
In the Human Interest - Mel Gurtov 
Dear Mel
As usual I enjoy reading your blog when its subject piques my interest, as in this case. While I concur with you in the points you make about what clearly must be seen as a dereliction of duty on the part of the South African Government I also see why South Africa and most other African countries have not always acted as aggressively to address the issues of war crimes and other acts of inhumanity as defined by the UN and the ICC.
The culpability of those leaders indicted by the ICC is never in doubt so why are African governments usually unwilling or very slow to act to bring the perpetrators of war crimes to face the ICC. Part of the answer lies in what Africans see as an obvious bias based on the fact that so far only African leaders have been indicted. But most importantly the answer lies in how African governments view the ICC and the entire international community and their attitude towards Africa. The vexing question is this: How is it that the ICC can now find so many African leaders guilty of crimes against humanity, genocide and war crimes when no such charges were ever levelled against colonial governments who did the same or worse things to these same Africans?
Obviously one cane see how South Africans, of all the African countries can not be expected to have any sympathy with the ICC. If the ICC did not see any reason to indict Apartheid South Africa of crimes against humanity one can see why South Africans could not be bothered with an ICC indictment of the Sudanese president.
As for the probable Mandela reaction, I am willing to wager that he would have acted the same way as the current leaders of SA did. Mandela after all was a man of deep principles first before he became a political figure, and he like probably no other leader in Africa felt the worst aspect of colonial subjugation in his life. his response to his treatment should be seen as an indication of his mettle as an evolved Soul but there is no doubt that he felt and realized the international community’s apparent indifference or impotence to do anything to address the gross abuses that occurred under Apartheid.
This is my TAke
Thank you, Kwaku, for your excellent comment. Clearly, there were many injustices committed by colonial and other powers in Africa, especially under the apartheid regime, and it is shameful that the criminals were able to act with impunity. Still, the South African High Court did decide to obey the ICC’s arrest warrant in keeping, the chief justice said, with the country’s constitutional obligation. I believe that was the correct position, notwithstanding the inequities of justice past and present. Al-Bashir is a notorious criminal; should he be able to evade trial because the colonialists did?