Whatever gloss the International Criminal Court (ICC) places on Omar al-Bashir's deft evasion of two of its arrest warrants yesterday, the bottom line is that South Africa knowingly fell into step with Robert Mugabe and the African Union (AU), dealing the ICC a crushing blow in the process.
The choice for Pretoria was crystal clear: to stand up and defend Nelson Mandela’s hard-earned commitment to human rights or to defy direct appeals from the ICC prosecutor and the United Nations secretary-general and let a fugitive from justice fly unchallenged out of the country.
That South Africa decided to invest so much diplomatic capital in choosing the latter will be hugely worrying for the ICC, because it means quite simply that the African country which should be the most powerful backer of its campaign against impunity has publicly abandoned the cause.
It means that when South Africa's ruling African National Congress (ANC) declared on Sunday that the ICC was "no longer useful for the purposes for which it was intended", it was doing more than grandstanding for the court's more vocal AU critics; it was finally taking sides in a long and bitter political battle.
Reform of the ICC
The time had come for reform of the ICC, the ANC maintained, because member states that had shown “unwavering commitment to upholding human rights and justice continue to unjustifiably bear the brunt of the decisions of the ICC, with
Sudan
being the latest example.”
South Africa is a signatory of the Rome Statute, which set up the ICC, and is therefore obliged to execute its warrants, but it is equally a high-profile member of the AU, which has accused the court of pursuing African leaders to the exclusion of other criminals, claiming its motivation is “colonial”.
The court’s rejection of that claim hasn’t been helped by the fact that the case against Kenya’s president, Uhuru Kenyatta, collapsed last year for lack of evidence, that its investigation in Darfur has been “suspended”, and that all its current cases are indeed against Africans.
For her part, the prosecutor, Fatou Bensouda, would allege that the Kenyatta case collapsed because of obstruction by the Kenyan government, that the probe in Darfur was stymied by the unwillingness of the UN Security Council to make member states enforce arrest warrants, and that, in the majority of cases, the African governments involved invited them to investigate.
One way or another, the ICC is now arguably weaker than at any other point in its 12-year history. As former US defence secretary Donald Rumsfeld once observed, "weakness is provocative".
The depth of South African disaffection is evident, too, in the failure of behind-the-scenes efforts over the weekend to prevent the very public humiliation of the ICC that has just taken place. Anticipating what might transpire, it is understood that representatives of the prosecutor met a South African envoy on Friday for what could hardly have been called a meeting of minds.
The South African official reminded the ICC that the AU had pledged on a number of occasions not to co-operate with the court and that leaders attending the summit had diplomatic immunity.
Rome Statute
In response, the prosecutor’s team reminded the South African official of his country’s overarching legal responsibilities as a signatory of the Rome Statute, and also that President al-Bashir was wanted for crimes against humanity and war crimes in Darfur, where more than 300,000 have died.
That is now bad diplomatic relations had become – and that was only Friday.
How great a blow is al-Bashir’s “escape” to the ICC’s credibility? Is it “finished”, as he claims? The short answer is no. It is currently building a new multimillion-euro headquarters to show that, as an institution, it’s here to stay.
The real long-term danger is more of the same: inadequate backing by the UN Security Council and the international community, and, as a result, “death by a thousand cuts”.
In that context, it is about to face its greatest challenge as it prepares to send investigators to Israel at the end of the month to consider a preliminary examination into Palestinian allegations of war crimes and crimes against humanity in the West Bank and Gaza.
This will be another situation in which Fatou Bensouda can ill afford to show weakness.