Civil Fraud Quarterly Round-Up: Q1 2021
Some will argue that the protests following events in South Africa show the world cares about the Hague court.
Sudanese president Omar al-Bashir seemingly owes much to his influential friends in South Africa. Last week he hurriedly returned home from Johannesburg in defiance of a South African court order preventing him from doing so, pending a decision whether to enforce the outstanding arrest warrants of the International Criminal Court (ICC).
As the world’s only current head of state charged with genocide, President Bashir has, for the moment, escaped the reach of the ICC. Is this a further set-back for the ICC or has the storm of criticism following the South African authorities’ failure to detain him actually elevated the court’s stature on the world stage?
President Bashir was indicted by the ICC six years ago for alleged war crimes during the Darfur conflict. He travelled from Sudan to attend the Organisation of African Unity’s conference in Johannesburg, no doubt relaxed following assurances, given by the South African authorities, of protection against prosecution as head of state. A human rights group made an application to the Pretoria High Court where Judge Hans Fabricius urgently, on a Sunday, ordered the Sudanese leader to be prevented from leaving South Africa pending a decision on enforcement of the ICC arrest warrant.
However, before the court could make that determination, President Bashir left in secret from an air force base. The South African government say the circumstances of his departure will be “fully investigated”; the court has complained that what took place was “inconsistent with the constitution”; and it has emerged that the air force base was served with an interim order preventing him from leaving.
Latest reports go so far as to suggest that it was president Zuma and his security ministers who plotted al-Bashir’s safe passage home. We may never know what information was passed on to President Bashir, by whom, or indeed whether the South African court would have ruled he should be detained and sent to the ICC for trial.
I have some sympathy for South Africa’s position. It had an obligation to support a fellow member of the African Union in line with the convention, passed in 2013, which gave immunity to members. However, it signed up to the Rome Statute and, given its past history, had an overriding responsibility to the ICC. One report says there were some discussions with the ICC shortly before President Bashir arrived, asking that they be exempted from their obligation to arrest. In a further twist, the United States, which itself has refused to ratify the Rome Statute, called for President Bashir to be arrested and presumably would have supported his transfer to the Hague even though the US has been dismissive of the ICC in the past. Such is international politics.
Some will say it shows what limited strength the International Criminal Court has in the face of international politics and that there is little chance of those suspected of genocide of being brought to account. Others will argue that the protests following events in South Africa actually show the world cares about the Hague court, not least because the Pretoria court was prepared to prevent President Bashir leaving and was going to consider any ICC request. It was not its fault the order was defied.
It may just be that when the next leader under suspicion turns up in a member state believing the long arm of the law cannot reach him, he could be in for a rude shock.
Ever the optimist, I tend to think the standing of the International Criminal Court, so criticised by many, has, in fact, been elevated by the failure of a member country to detain an indicted head of state.
First published in The Times, 25 June 2015.
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