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ICC ruling on South Africa and al-Bashir: pragmatism wins the day

Sudanese President Omar al-Bashir returned to Khartoum, after evading possible arrest in South Africa in 2015. EPA/Marwan Ali

The International Criminal Court (ICC) has finally handed down its highly anticipated judgment on South Africa’s failure to arrest Sudanese President Omar Al-Bashir. In a somewhat surprising decision, the court’s pre-trial chamber ruled that South Africa had failed to comply with its obligations as a signatory to the Rome Statute. But ICC judges stopped short of taking tougher action, choosing not to refer South Africa to either the Assembly of State Parties or the United Nations Security Council.

Some have argued that the decision “may do the ICC more harm than good as far as being taken seriously as a legal institution.”

Instead, I will argue here that the ICC made a pragmatic decision, informed by the current fragility of the Court, and by the nexus between politics and international criminal justice. The decision might instead make the Court more functional by reconciling legal idealism and political reality.

First, a brief background to the events leading up to the Court’s decision.

The case against South Africa

Al-Bashir is wanted by the ICC on charges of genocide, war crimes and crimes against humanity, and was in South Africa for the 2015 African Union Summit.

As a signatory to the Rome Statute that governs the jurisdiction and functioning of the Court, South Africa was obliged to arrest al-Bashir when he was in the country, and to extradite him to The Hague to face trial.

But the government refused to arrest him. It cited the impact this might have on ongoing peace negotiations in Sudan and the decision to grant immunity to all delegates attending the summit.

South Africa’s Supreme Court of Appeal subsequently ruled that the failure to arrest al-Bashir was unlawful. The government remained unrepentant.

In addition, months after the events surrounding the summit, the South African government announced its intention to withdraw from the ICC. The decision was subsequently ruled unconstitutional by the High Court in Pretoria.

Significance of ruling

The ICC’s ruling was significant for several reasons.

First, it was made only a short time after what appeared to be the beginning of mass exodus by African countries from the ICC.

In late 2016, The Gambia and Burundi joined South Africa in announcing their intention to leave. In fact, the feared African exodus hasn’t materialised. The Gambia and South Africa have since reversed their decisions. But the Court’s decision reflects its often fraught relationship with African countries – some of which are well-founded, some less so.

The Court’s ongoing inability to get Al-Bashir to The Hauge for trial reflects its greatest limitation: its reliance on the cooperation of states to get anything done. Given this, it would have been perfectly reasonable and legitimate to refer South Africa to the Assembly of State Parties or the UN Security Council.

But the ongoing legitimacy of the Court depends not only on the number of signatories to the Rome Statute – currently 124 – but also their geographical spread.

The support of African countries is imperative to the Court’s continuing legitimacy. Its decision is therefore partly informed by the need to keep African countries onside.

Second, the Court is entering a new phase. It’s either considering, or is about to open three new cases involving Afghanistan, Ukraine and Palestine. Each case shares a common characteristic: the investigations are likely to involve the armed service personnel of countries that not only refuse to join the Court, but are also openly hostile to the idea that the Court has any jurisdiction over their soldiers. The countries are the US, Russia and Israel.

The potential situation in Palestine is especially fraught. I’ve argued before that Israeli and US defence force personnel should be held to account at the ICC for their actions. Similarly, I’ve also argued that it’s important for the future of the Court that it open investigations outside of Africa.

For the Court to act without acknowledging the political sensitivities of these new situations would be simply naive. The Court’s decision on South Africa suggests it’s acutely aware of these political realities.

Third, arguably the most significant aspect of the Pre-Trial Chamber’s decision was the comments concerning the Security Council:

The Chamber observes that States Parties have been referred to both the Assembly of States Parties and the United Nations Security Council in six instances in relation to failures to arrest and surrender Omar Al-Bashir… However […] meetings of the Security Council of the United Nations […] have not resulted in measures against States Parties that have failed to comply with their obligations to cooperate with the Court.

This is a damning indictment of the Security Council. Despite the decision that South Africa had not fulfilled its obligations as a signatory in failing to arrest al-Bashir, the ICC has deemed the punishing body – the Security Council – not fit for purpose. What this means for future Article 87 rulings is unclear.

Political realism

The Chamber’s ruling provides further evidence that the Court’s ability to function in the manner envisioned by the architects of the Rome Statute appears to be increasingly at the whim of international politics.

None of this is to suggest that the Court’s activities be informed purely by realpolitik. Indeed, one of the greatest successes of the Court in its 15 years of operation is the degree to which it has contributed to undermining traditional understandings of “politics as power”.

But the Court is operating in a very different political environment to the “golden age” of international criminal justice in which it was established. Some pragmatism might serve it well.

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