Academia Human Rights Justice

Bashir’s Visit

By Will H. Moore

Omar al-Bashir on a visit to Juba, South Sudan in 2014. By Al Jazeera English.

Omar al-Bashir on a visit to Juba, South Sudan in 2014. By Al Jazeera English.

Sudanese President Omar al Bashir’s recent visit to, and from, South Africa raises interesting issues regarding the status of the international human rights regime. I put a Rorschach type question to our group of regular contributors, and though only two responded, I think you’ll enjoy what they had to say.

What do we learn from events surrounding Omar al-Bashir’s trip to South Africa?

To quickly recap, the International Criminal Court (ICC) has indicted al-Bashir for the trifecta of human rights crimes, yet he has continued to travel abroad some, running the risk of being arrested and extradicted to The Hague to stand trial. The African Union was meeting in South Africa, which “has been a traditional defender of the ICC and has previously insisted that it would arrest Bashir if he stepped foot on its territory.” Nobody expected Bashir to attend, but he stepped off the plane with the Sudanese delegation, and boom, a humanitarian diplomatic crisis on the scale of 1998’s arrest of Augusto Pinochet in London was born. South Africa’s High Court issued an order not to permit Bashir to leave, but after the meeting the government quietly ushered him out of the country via a military airport.

So, what have we learned?

Oliver Kaplan quipped: “If you’ve been indicted by the ICC, be prepared for a fast takeoff.”

Bridget Coggins took a more sober approach, noting that “the ICC is best suited to pursuing remedial justice for those no longer in high office or for participants in non-state groups.” Why?

Although the court was created to ensure that no one, no matter how powerful, could perpetrate crimes against humanity with impunity, many leaders and publics are uncomfortable endowing the ICC with the authority to depose sitting leaders — including three of the five permanent members of the UN Security Council.  

Indeed, I am struck by the extent to which the high level officials who have faced prosecution for human rights crimes, whether in domestic or international courts, have strongly tended to be 70 years or older. My takeaway: until much of the power base a political leader recruits is in the grave, they are very difficult to prosecute. Put broadly, human rights law is no different than any area of law: powerful people have less to fear than those with little power.

As Steven Friedman observed “African countries, of course, complain that the ICC only indicts Africans,” and some observers look at SA’s failure to arrest and extradite Bashir as a failure of certain states to respect the court and the international human rights regime. Coggins disagrees, arguing that state’s non-compliance with ICC decisions and requests:

is not an “African” or “Arab” problem with the court – as many analysts and leaders have portrayed it – but evidence of the inherent tension between sovereignty and international law. When the warrants against Bashir were first issued, they were not without controversy. Many came out against them (US Sudan Envoy Scott Gration, China, the Arab League) because they were the first against a sitting president AND because they created political difficulties for the new engagement strategy toward the Bashir regime — isolation (sanctions) had been the modus operandi for some time. Finally, and relatedly, it is not unreasonable to believe that Bashir’s likely successor would take a harder line, pursuing more violence in Darfur and other border regions, expelling humanitarian aid workers and other foreign observers, and making life even worse for Sudanese civilians.

Noting the UN’s relatively active role in the Sudanese conflict, she points out the multiple venues available for pursuing international justice, and then observes how real politik may play out in the setting described above.

There is not yet an international consensus lined up in favor of the ICC’s prosecution of sitting leaders. To date, Security Council actions seem to accrue more legitimate authority. Therefore, the ANC’s decision to allow Bashir to return to Sudan reflects a wider international ambivalence about the Court’s proper role.

To offer my two cents, some will contend that this underscores how the international human rights regime is broken or a failure. Hogwash. That the conviction rate for murder in the US is below 65% leads zero people to declare laws against murder a failure. Are there problems with domestic law enforcement in the US (and elsewhere)? You bet! But when many discuss international human rights they want to apply standards that nobody takes seriously when assessing the efficacy of domestic law. Does power undercut law? Yes. Does that mean that the international human rights regime is meaningless?  Don’t be silly. Just ask Dick Cheney’s or Donald Rumsfeld’s travel agents about the international trips they’ve been booking.

@WilHMoo

3 Comments

  • An interesting side note; at a recent workshop we hosted on South Sudan one of the participants was asked about the use of radio in ethnic mobilization during the outset of the current conflict. The response was instructive. Apparently there was some incitement but the various militia leaders quickly shut it down. Why? “Because talk like that would end them up in “the” court” – did it stop massacres? Nope. But, the possibility of indictment by the ICC was clearly on the minds of the warlords

    • Hi Allison. That discussion is interesting. It’s consistent with what many have found with respect to death squads writ large, i.e. that as humanitarian norms proliferate, it incentivizes those who choose to commit war crimes to take them underground and perpetrate them more quietly. Of course, plausible deniability has been the name of the game in Sudan for some time.

  • Agree with your last point. Consistent with my remark, if the ICC were truly non-threatening, Bashir would have not made a hasty exit and would have instead felt comfortable taking his time. Even though South Africa did not make an effort to stop him, it seems there was at least some amount of fear that the ICC ruling might come to bear. This suggests the ICC may be in an intermediate phase in terms of its development and impact. So, instead of arriving at a negative interpretation of the ICC’s power, this could actually suggest possible growing influence.

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