By Mina Shah
On Friday of last week, the UN called South Africa to defend itself at the International Criminal Court for not handing over Omar al-Bashir, the Sudanese President who has a warrant out for his arrest for the war crimes that he committed. al-Bashir was in Johannesburg in 2015, and instead of holding him and then turning him over to international authorities, the officials of South Africa let him leave.
The reach of the court is limited by the fact that only certain parties can refer cases to it: member states (parties to the Rome Statute) and the UN Security Council. A state who is not party to the Rome Statute can also accept the jurisdiction of the ICC, but their case would have to be brought by either a member state or the Security Council.
The fact that South Africa is being brought to explain itself to the International Criminal Court will be important for the court’s future for several reasons, not limited to the fact that the limited access of the court to prosecuting crimes increases the impact of each court proceeding. Other reasons that this will change the court’s future include the tone that it will set for future prosecutions, the expectations set for people committing war crimes and other heinous acts, and the potentiality for loss of face by the court.
By holding South Africa accountable for letting al-Bashir go, the ICC can set a precedent of going after those who are complicit in atrocities. This is important because if this does indeed begin to set a precedent, it is increasingly the case that international parties may be discouraged from aiding and abetting international criminals. If countries can be discouraged from being complicit in violence, it is possible that we can eradicate the kinds of crimes that al-Bashir committed. If war criminals begin to realize that they won’t be helped by anyone, they will either stop committing heinous crimes altogether or will be stopped much earlier on in their trajectory.
Demonstrating that the ICC cares about preventing states from being complicit in the perpetration of mass atrocity-type violence can also have a long-term effect on even those countries who are not party to the Rome Statute. If it becomes clear that this is a priority for the ICC and the court is willing to use its allies to follow up with countries that ignore its directives, even countries who are not technically member states may feel encouraged to also comply with the ICC. This is important because the more nations can stand up to folks who commit mass atrocities the better the world will be.
Despite that there could be lots of positive that comes from holding South Africa accountable for letting al-Bashir go, following up with South Africa could also be really bad for the International Criminal Court. If the outcome is bad or if they conduct the investigation in a way that furthers colonial initiatives, then it looks like (and could be) the court is unfairly persecuting African nations and not holding other countries to a similar standard. This could be extremely problematic for the court itself because if the ICC continues to lose face in the same way that it did around Kenya’s presidential elections of 2013, it may continue to lose its legitimacy as a court on the whole.
It is also unclear as to whether now is the best time to put pressure on South Africa since they recently tried to pull out of the ICC altogether. Putting more pressure on the country when relations are strained and internal tensions are high (as many South Africans protest against President Zuma in the hope that he will step down) may strain the relationship further and give the nation’s future leaders more reason to attempt another break with the court, further jeopardizing its legitimacy.
In order to protect its legitimacy and be effective in discouraging large-scale violence, it will be important for the ICC to continue to go after parties who aid and abet people who commit or orchestrate mass violence. It isn’t fair that countries who haven’t signed onto the Rome Statute don’t have to follow the same rules as everyone else, and the countries who are party to the court certainly feel that way. In order to make it such that the court actually supports and seeks justice, it must go after all aiders and abetters without discrimination.
Contact Mina Shah at minashah ‘at’ stanford.edu.