Margaret Thatcher once advised those delegates to the United Nations who criticize the organization for being weak to look in the mirror for the explanation. International law is much the same: If you want to know why governments so often fail to respect it, all you have to do is step back for a moment and consider that governments are responsible for lawfulness; international judicial bodies such as the International Court of Justice and the International Criminal Court (ICC) have no policing power to enforce the law. Those courts must rely on the governments that created them and on the moral force that international legal authority represents.
In South Africa, international law experienced a serious setback when its government refused to arrest Omar Hassan al-Bashir, ruler of Sudan since a 1989 coup and a wanted man. The ICC issued arrest warrants for al-Bashir in 2009 and 2010 for crimes against humanity (five counts), war crimes (two counts), and genocide (three counts), all committed in the conflict in Sudan’s Darfur region, leaving hundreds of thousands dead and millions of noncombatant refugees. In June, Bashir was attending a meeting in South Africa of heads of state of the African Union, believing he had immunity from seizure just as he had when he attended other events outside Sudan in recent years. But the South African government, a signatory to the Rome Statute that established the ICC, was obliged to arrest him and turn him over to the ICC for trial.
South Africa’s high court ruled on June 15 that the government was bound by the constitution to detain al-Bashir. But by the time it ruled, according to various reports, the South African government had allowed him to board a private plane and return home. Photos showed him receiving a hero’s welcome—staged, no doubt, but still a happy escape for a tyrant. This act of the South African government could never have happened under Nelson Mandela, but it has happened now, and deserves international condemnation. This South African government, rather than follow the law, is instead threatening to withdraw from the ICC treaty.
As so often happens in international affairs, law is subject to political priorities. There is no question that al-Bashir should have been arrested in accordance with the ICC warrant and brought to The Hague to face trial. But other African states have rejected the ICC’s jurisdiction, arguing that only African leaders have been indicted. That is factually correct: nine African leaders have been indicted by the ICC, but other criminals outside Africa, such as Assad in Syria, have not been. (The ICC has begun a preliminary inquiry into war crimes committed by Israel in the Gaza war last year. But both Israel and Hamas have rejected the inquiry and refused to allow investigators entry into Israel or Gaza.)
Surely the question of bias deserves investigation, and just as surely the ideal situation would be strengthened rule of law in Africa such that leaders who commit or condone mass violence are brought to justice in their own countries. But those possibilities cannot excuse well documented, large-scale violations of international law anywhere, whether by a sitting or former heads of government.
The US is once again in the position of lacking credibility to speak out on a matter of international law because it has not signed or ratified the relevant document. (Signers number 123 countries; Sudan is not among them either, but since al-Bashir is a UN-designated war criminal, Sudan’s outlier status doesn’t matter.) Thanks to the George W. Bush administration, the US did not sign the Rome Statute for fear that US officials or soldiers might be indicted for war crimes or crimes against humanity. A poor excuse indeed; and it now leaves Washington without a voice on a matter of great importance to huge numbers of innocent victims of officially approved violence.
In closing, I’m led to wonder: Suppose this were 1939, and an international criminal court existed. Suppose further that the court issued an arrest warrant for Adolf Hitler, for crimes against humanity and genocide. If Hitler had ventured outside Germany, would any government have detained him and sent him to The Hague for trial? You think so? I’m not so sure.
Mel Gurtov is Professor Emeritus of Political Science at Portland State University, Editor-in-Chief of Asian Perspective, an international affairs quarterly and blogs at In the Human Interest.