By Marlise Simons
Sudan’s president, who is wanted on charges of genocide and war crimes in his country, could soon find it harder to travel abroad.
On Thursday, judges at the International Criminal Court strongly criticized South Africa for failing to arrest the president, Omar al-Bashir, when he visited Johannesburg for an African Union meeting in 2015.
The court explicitly rejected South Africa’s argument that al-Bashir enjoyed immunity, as a head of state, while leading Sudan’s delegation to the meeting.
Al-Bashir has evaded the reach of international law since the court first issued a warrant for his arrest in 2009. Just this week, it was announced that he had accepted an invitation to visit Moscow.
Watching who shuns and who invites al-Bashir has become something of an international parlor game.
But the underlying question could not be more grave: Will a sitting head of government, wanted for crimes against humanity over his government’s violence against civilians in the Darfur conflict, be held accountable under international law?
The court holds out hope that the answer will be yes.
There should have been no doubt about al-Bashir’s claim of immunity, a panel of three judges said, because on the eve of his arrival, South African diplomats had consulted with the court and were explicitly told that as a member of the court, South Africa was obliged to arrest and surrender him.
The judges declined to formally refer the matter to the United Nations Security Council, saying that doing so had not borne results in the past, and noting that South Africa’s own courts had criticized the government for violating its legal commitments.
In a noteworthy move, however, one of the judges, Marc Perrin de Brichambaut, argued that South Africa and Sudan were under an obligation to arrest al-Bashir, because they are both signatories to the UN genocide convention, which took effect in 1951. A total of 147 countries have ratified that treaty, more than the 124 that have joined the International Criminal Court.
By highlighting the significance of the genocide treaty — and not merely the International Criminal Court itself — the ruling could open new avenues for litigation by rights activists, and could raise the political cost for some countries to receive a fugitive from war crimes and genocide charges.
Al-Bashir has been charged — though not tried — for genocide involving three African tribes in Darfur.
Violence in the region of western Sudan erupted in 2003 between the Arab-dominated government and non-Arab rebel groups.
According to prosecutors, government militia gangs, backed by military and police helicopters, were unleashed from 2003 to 2008 to burn hundreds of villages, bomb schools and poison wells, and they also engaged systematically in looting and in the rape of women and girls.
The United Nations estimates that about 300,000 people died and more than 2 million were uprooted in years of fighting. In 2005, it asked the International Criminal Court, based in The Hague, to investigate.
The court issued an arrest warrant against al-Bashir in 2009 and ordered him to face charges of war crimes and crimes against humanity over attacks on civilians in Darfur. Judges later added three counts of genocide.
Published on the Boston Globe on July 6, 2017.