Impunity vs Immunity: Africa and the ICC

By Netsanet Belay

As the International Criminal Court (ICC) opens its Assembly of States Parties — the periodic gathering of all the countries who have ratified the court’s statute — in The Hague, it does so with a bloody nose.

The court was yet again met with contempt this month by South Africa’s failure to cooperate with its arrest warrants for one of its longest running fugitives, President Omar al-Bashir of Sudan.

On June 15, South Africa’s government failed to obey an order from its own high court to prevent al-Bashir from leaving the country. The order had been made while the court decided whether to compel the government to fulfil its international and constitutional obligations to uphold two ICC warrants for the arrest of Sudanese President al-Bashir. The Sudanese leader, who was visiting Johannesburg for an African Union Summit, faces seven counts of war crimes and crimes against humanity, as well as three counts of genocide in Darfur.

South Africa joins a long list of states that have failed to arrest and surrender al-Bashir to the ICC to face trial — each time it happens is another betrayal for the hundreds of thousands of victims killed during the Darfur conflict.

This latest failure, though, was a particularly poignant slap in the face. Ahead of the AU Summit, many of us thought that al-Bashir would not dare come to South Africa, which is not only a founding member of the ICC, but has also enacted a fairly strong national law to implement the ICC’s jurisdiction nationally. But he did come and he was welcomed by South African government officials!

Anticipating this might happen, the Southern Africa Litigation Centre, a prominent national human rights group, acted quickly to bring a legal challenge to the Gauteng High Court calling for his arrest and surrender to the ICC. In a strong statement that there should be no impunity for crimes under international law, the court first issued an interim order that al-Bashir not be allowed to leave South Africa until the matter was finally decided. Judge Hans Fabricius made it clear that all the South African government agencies were directed to take all necessary steps to prevent al-Bashir from leaving the country.

But this order was never complied with.

As early as the next morning the court sat to decide whether the South African government should arrest al-Bashir and hand him over to the ICC. While they were meeting, the media broke the news that al-Bashir had allegedly already left the country, but the South African government denied this. “To the best of our knowledge as government, he is in the country” was the response to questions in court. At times it bordered on the absurd: “ … he could be in the hotel room resting, or shopping” the state counsel told the judge at one point.

What was at the crux of the court debate was whether immunity or impunity should prevail in South Africa. South Africa’s government argued that diplomatic immunity for a serving head of state had precedence, even at the expense of impunity for such serious crimes as genocide and crimes against humanity for which al-Bashir is wanted. But South Africa’s judiciary was clear and unambiguous about its government’s legal obligation to fight impunity and to ensure justice for international crimes even when the perpetrator belongs to the club of leaders.

The court held that the conduct of the South African government in failing to “take steps to arrest and or detain” al-Bashir” was “inconsistent” with South Africa’s constitution. The court also confirmed South Africa’s obligation towards the ICC by declaring that the government was “compelled to take all reasonable steps to prepare to arrest President al-Bashir … pending a formal request for his surrender from the International Criminal Court”.

But seconds after this judgment, the government of South Africa did an about-face and confirmed that the fugitive had indeed left the country. In essence, while immunity was defeated in court, the South African government allowed impunity to prevail.

The end game was tragic in many ways but also a victory in others. South Africa’s justice system and civil society stood their ground, standing on the side of the victims, upholding international justice and the rule of law. Once again, any ambiguity about South Africa’s legal obligation to fight impunity and to ensure justice for international crimes has been cleared by the judiciary.

In South Africa’s case, even a national court ruling failed to prevent the government from upending the rule of law and refusing to comply with the ICC arrest warrants. But all the same, it sends a powerful message that we as Africans who stand for justice do so on all levels, and we will continue to do so, no matter what some of our political leaders might say.

Maybe Africa as a whole has not yet reached a golden era of support for international justice. But there are promising signs that not all is bleak, and Amnesty International will continue to work with NGOs and governments across the continent to ensure that perpetrators of the worst crimes under international law — no matter where in the world they’re from — are brought to justice.

Netsanet Belay is Amnesty International’s research and advocacy director for Africa – @NetsanetDBelay