Bashir fi­asco high­lights global fail­ure

The China Post - - COMMENTARY - BY NI­CO­LAS DE­LAU­NAY

South Africa’s re­fusal to hand over Su­dan’s Pres­i­dent Omar alBashir to the In­ter­na­tional Crim­i­nal Court was a fresh snub for the Dutch-based tri­bunal, high­light­ing its re­liance on sup­port from world pow­ers to do its job, ex­perts said.

Bashir, who is wanted by the ICC for al­leged geno­cide, crimes against hu­man­ity and war crimes in Su­dan’s Dar­fur re­gion, flew to South Africa on Satur­day to at­tend an African Union sum­mit.

Seiz­ing on his pres­ence in the coun­try, a South African rights group went to court to try have him ar­rested.

But de­spite the court or­der­ing Bashir to re­main in the coun­try un­til the ap­pli­ca­tion was heard, the Su­danese leader flew home un­per­turbed on Mon­day, in the latest blow to the ICC af­ter it was forced last year to call off its case against Kenyan Pres­i­dent Uhuru Keny­atta.

The South African gov­ern­ment “quite sim­ply ig­nored the judge, which is un­think­able un­der the rule of law,” said Go­ran Sluiter, lec­turer in in­ter­na­tional law at Am­s­ter­dam Univer­sity.

Sluiter blamed the United Na­tions Se­cu­rity Coun­cil, which in 2005 asked the ICC to probe crimes in Dar­fur, where some 300,000 peo­ple have been killed in a con­flict be­tween Khartoum and mostly black African in­sur­gents, ac­cord­ing to U.N. es­ti­mates.

“The Se­cu­rity Coun­cil said ‘ICC, help us,’ but since then they’re not sup­port­ing the ICC at all, whether with ac­tions or sanc­tions,” Sluiter told AFP.

The ICC is­sued an ar­rest war­rant for Bashir in 2009, but he has con­tin­ued to travel unim­peded, in­clud­ing to states like South Africa that have signed the court’s found­ing Rome Statute and are, there­fore, obliged to ar­rest sus­pects.

“As long as the great pow­ers don’t send clear sig­nals, peo­ple like Bashir will get away,” said Willem van Genugten, in­ter­na­tional law ex­pert at Til­burg Univer­sity.

In the mean­time, the U.N. Se­cu­rity Coun­cil could have hit Bashir with sanc­tions, such as a travel ban or as­set freeze, said Van Genugten.

“There would be much more pres­sure and Bashir would cer­tainly be more iso­lated,” he told AFP.

So far, 123 coun­tries have signed and rat­i­fied the Rome Statute — a list that does not in­clude the United States, Rus­sia and China, all three per­ma­nent veto-wield­ing Se­cu­rity Coun­cil mem­bers.

The Hague-based ICC does not have its own po­lice force and is there­fore re­liant on states to make ar­rests.

For­mer Ivo­rian pres­i­dent Lau­rent Gbagbo and for­mer Con­golese vice pres­i­dent Jean-Pierre Bemba are in ICC cus­tody in The Hague, but many oth­ers of those in­dicted by the court are be­ing held else­where or are still at large.

They in­clude for­mer Libyan dic­ta­tor Moam­mar Gad­hafi’s son Seif al-Is­lam, who is be­ing held in Libya, and Gbagbo’s wife Si­mone, whom Ivory Coast author­i­ties are re­fus­ing to hand over for trial.

The chances of ar­rest­ing a serv­ing head of state or politi­cian are even slim­mer.

ICC chief pros­e­cu­tor Fa­tou Ben­souda sus­pended her case against Kenyan Pres­i­dent Uhuru Keny­atta be­cause of a lack of ev­i­dence af­ter Nairobi re­fused to hand over what she said were “cru­cial” doc­u­ments.

The ICC has only been op­er­a­tional since 2003 and has en­coun­tered many ob­sta­cles in its work, in­clud­ing ac­cu­sa­tions from the African Union that con­ti­nent.

Pros­e­cu­tions that could emerge from pre­lim­i­nary ICC in­ves­ti­ga­tions launched in Ukraine, Palestine and Iraq could po­ten­tially face tough ob­sta­cles be­cause they are po­lit­i­cally more sen­si­tive for the world’s big pow­ers.

Am­s­ter­dam Univer­sity’s Har­men van der Wilt said the fact that Bashir’s ar­rest was back on the agenda was it­self good news.

“The fact that the ques­tion (of his ar­rest) is asked again and again is im­por­tant,” he said, prais­ing South African judges for de­mand­ing an­swers from the gov­ern­ment and ac­cus­ing Pre­to­ria of vi­o­lat­ing South Africa’s con­sti­tu­tion for fail­ing to ar­rest him.

Th South African court ap­pli­ca­tion was the first se­ri­ous at­tempt to have a serv­ing head of state ar­rested fol­low­ing an ICC re­quest.

“This is a long-haul task,” said Til­burg Univer­sity’s Van Genugten. “In­ter­na­tional jus­tice pro­gresses step-by-step.”

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