International Criminal Court

Welcome to “Women Around the World: This Week,” a series that highlights noteworthy news related to women and U.S. foreign policy. This week’s post, covering June 9 to June 15, was compiled with support from Lucia Petty and Rebecca Turkington.

With John Bolton as national security advisor, both the United States and the International Criminal Court should take steps to avoid a collision. 

Nelson Mandela’s South Africa was one of the founders of the International Criminal Court (ICC). As an early signer of the Treaty of Rome the widespread view within the ruling African National Congress (ANC) was that the ICC was a means of holding accountable dictators and other heads of state for criminal behavior. The ANC government even incorporated the Treaty of Rome into South African law. Hence, violation of the Treaty of Rome is also a violation of South African law. Since its establishment, the ICC shoe has pinched the toes of a number of dubious heads of state, notably Kenya’s Uhuru Kenyatta. At the request of the then-Kenyan government, the ICC investigated crimes committed at the time of the 2007 Kenyan elections and subsequently indicted Uhuru Kenyatta, by then president of Kenya, and his vice president William Ruto. However, Kenyatta’s Kenyan government refused to cooperate with the ICC and prosecutors accused it of intimidating witnesses, who withdrew their testimony. The cases collapsed, and Kenyatta launched a campaign for African states to withdraw from the ICC. He and others accuse the ICC of bias against African states, and many claim that the ICC’s jurisdiction should not extend to heads of state or governments. There is also resentment that certain Western countries, notably the United States, support the ICC but have declined to sign the Treaty of Rome and therefore are not under its jurisdiction. There is anger in some quarters that the ICC could not indict members of the George W. Bush administration for perceived crimes during the war in Iraq. South Africa’s President Jacob Zuma, too, has fallen afoul of the ICC. Under the Treaty of Rome, if a person indicted by the ICC falls into the hands of a signatory state that state is obliged to hand him over to the court. Sudan’s chief of state Omar al-Bashir has been so indicted by the ICC for crimes committed in Darfur. Al-Bashir visited Pretoria in 2015 for an African Union heads of state summit. Zuma not only failed to detain Bashir, he facilitated the latter’s hasty departure from the country when South African courts were moving toward ordering Bashir’s arrest, following suits filed by South African civil organizations. Subsequently, the Zuma government has joined the quit ICC bandwagon by notifying the United Nations of South Africa’s intention to withdraw. At its January summit, the African Union heads of state voted in favor of a non-binding resolution calling for its members to withdraw from the ICC. However, on February 22, the South African High Court ruled in favor of the opposition Democratic Alliance suit that the government’s announced departure was “unconstitutional and invalid.” Because the Treaty of Rome is incorporated into South African law, only parliament could change it so that South Africa could leave ICC jurisdiction. In response to the ruling, the Zuma administration has reiterated its intention to leave the ICC and is considering its options. Zuma’s ANC has a majority of over sixty percent in parliament. The BBC concludes that at the end of the day, parliament is likely to approve withdrawal; but such a projection is premature-still. The ANC is badly fractured with pro and anti-Zuma factions. The party is scheduled to elect a new leader in December 2017. Many South Africans, including some in the ANC, see the ICC as part of the Mandela legacy of “non-racial” democracy and the rule of law. Shedding ICC jurisdiction, by contrast, is associated with Zuma, who is discredited among some for alleged corruption. Hence, it is by no means certain that parliament would do Zuma’s bidding on this issue anytime soon.

At the end of the recent 28th African Union (AU) summit in Addis Ababa on January 31, a recommendation emerged that collectively member states should withdraw from the International Criminal Court (ICC). The AU is not a party to the Treaty of Rome, which established the ICC, and its recommendation cannot compel individual states to withdraw. According to the media, Nigeria, Senegal, and Tanzania opposed the AU recommendation and other states declined to commit themselves. In the aftermath of the recommendation, on February 1, Nigeria publicly reiterated its intention to remain within the ICC. The most vocal advocates for withdrawal have been Kenya, Burundi, and South Africa. Kenyan President Uhuru Kenyatta and Vice President William Ruto were both indicted by the ICC for crimes connected to their 2007 elections. Both cases collapsed, with the Kenyan government declining to cooperate with the ICC and, possibly, tampering with witnesses. South Africa’s President Jacob Zuma has been widely censured for his failure to hand over Sudan’s Omar al-Bashir when he visited South Africa in 2015 for an AU heads of state summit. Al-Bashir has been indicted by the ICC. As a signatory of the Treaty of Rome, South Africa was obligated to hand him over for trial. Zuma failed to do so and even helped facilitate al-Bashir’s travel back to Sudan. This is apparently a violation of both the Treaty of Rome and South African law. As such, there is currently a case against him still making its way through the South African courts. The Burundian government took steps to withdraw from the ICC following a credible UN investigation of systematic human rights abuses, including the discovery of mass graves. However, in Kenya legislation to bring about withdrawal from the ICC has lapsed. Similar legislation has not been introduced in South Africa. Further, according to Deutsche Welle, both the Kenyatta and Zuma governments appear to be exploring possible amendments to the Treaty of Rome – which implies their continued membership. Nevertheless, sentiment in sub-Saharan Africa is widespread that the ICC “unfairly” has focused on the continent, and ignored abuses elsewhere. Some African intellectuals complain that the ICC has ignored the human rights abuses committed by western nations, including those alleged against the George W. Bush administration with respect to Iraq. African nations often cite the United States as an example of why they should not be beholden to the ICC: the U.S. position is that it supports the ICC while declining to sign the Treaty of Rome. On the other hand, African elites also recognize that there is at present no alternative to the ICC for holding the chiefs of signatory states accountable. Most of the ICC cases brought against Africans have been at the request of African governments at the time, including those involving Kenyatta and Ruto.

With the presidential transition underway, observers have noted with concern President-elect Trump’s hostility toward international institutions. As CFR Senior Fellow Stewart Patrick notes, “[T]here is one prediction we can take to the bank: The United Nations is going to get hammered.” In the aftermath of the recent controversial UN Security Council resolution criticizing Israeli settlements, Trump accused the world body of causing more problems than it solves, calling the 71 year-old institution “a waste of time and money,” and tweeting, “The United Nations has such great potential but right now it is just a club for people to get together, talk and have a good time. So sad!” Indeed, it has become fashionable once again in Washington to beat up on the UN—that is—until the next international emergency when the world will turn to Turtle Bay to solve global problems and respond to crises that no one state can address alone. As Suzanne Nossel points out, “Though they may be loath to recognize it, the president-elect and his top official will quickly find that they need the UN as a negotiating forum, a source of international legitimacy and an expeditionary body ready to venture where the United States won’t go.” While the incoming president has expressed skepticism toward the UN and other international institutions, Trump has not said much about the International Criminal Court (ICC). Like the UN, the idea behind creating the ICC emerged from the ashes of World War II and the Nazi Holocaust. It took another half century after the founding of the UN before the ICC came into effect. Its establishment not only offers a way to punish war atrocities, but also provides deterrence against would-be abusers from contemplating committing genocide and other serious international crimes. As is true with domestic criminal justice, international criminal justice is important not only to secure justice for victims, but also to preserve rule of law and promote greater peace, security, and stability in an otherwise tumultuous world. When courts dispense justice, aggrieved individuals and communities are less likely to take matters into their own hands, which can escalate into serious conflicts with spill-over effects for us all. International criminal justice is not only the right thing to do, but the smart thing to do. National courts can occasionally prosecute these crimes, but are sometimes not willing or able to do so. While the ICC is a relatively new institution, it has investigated numerous allegations and prosecuted several cases, leading to a handful of convictions thus far in cases ranging from the use of child soldiers to the use of mass rape as a weapon of war. Last year, the ICC handed down a historic conviction, finding Congolese rebel leader Jean-Pierre Bemba guilty of rape as a war crime and crime against humanity, the Court’s first conviction of rape as a weapon of war. The landmark trial and conviction sends the message that senior officials of armed forces or leaders of militias will be held accountable if they fail to punish or prevent sexual violence. As I have written before, terrorist groups also use rape and other forms of sexual violence not only to instill fear but also as a way to consolidate their power, foster their ideology, and generate revenue for future acts of terror. Very few courts have the expertise, infrastructure, and resources of the ICC to prosecute complex, transnational crimes. The Bemba conviction proves the ICC’s efficacy in dispensing justice, and it opens the door for prosecuting leaders of terror networks such as Boko Haram and the self-proclaimed Islamic State. While the ICC has had its successes, it also faces challenges. Last fall, Burundi, South Africa, and Gambia indicated their intent to withdraw from the Court, citing its disproportionate focus on cases in Africa, though the new government in Gambia is likely to rejoin.  Soon after reports of the African withdrawals, Russia jumped on the bandwagon by announcing it too was withdrawing from the treaty that created the ICC. Given that Russia was never actually a full party to the treaty, this cynical move is largely symbolic, but reflects Russia’s concern over its potential liability for its actions in Crimea and Syria. Despite the Court’s challenges, President-elect Trump would be foolish not to support the important work it does. The ICC has played an important role in advancing interests the U.S. paved the way for following World War II, and there are many ways that the United States can support the Court without becoming formally becoming a party. Having announced that she is considering an investigation into alleged torture by U.S. military and intelligence personnel in Afghanistan, the ICC prosecutor may be headed for a confrontation with the Trump administration. However, under the principle of complementarity, the Court will not prosecute cases where the relevant country has taken necessary steps to investigate and punish war crimes. The Trump administration should continue the current U.S. policy of positive engagement with the Court, which has enabled the United States to participate as an “observer” in the ICC’s Assembly of States Parties to ensure U.S. interests are met. The United States could also continue to offer support for specific prosecutions, on a case-by-case basis--for example through cooperation on witness protection--and could offer expertise and logistical assistance in collection of evidence or in efforts to apprehend ICC fugitives. The United States took similar steps to support the International Criminal Tribunal for the Former Yugoslavia (ICTY), such as by providing the ICTY Prosecutor with aerial images showing the construction of mass graves at Srebrenica.

This is a guest post by Cheryl Strauss Einhorn. Cheryl is an adjunct professor at Columbia Business School. Burundi, Gambia, and now South Africa have all recently announced their intentions to withdraw from what they deride as a “biased” International Criminal Court (ICC). The permanent tribunal responsible for investigating crimes against humanity, genocide, and war crimes that was created in 1998. It’s the latest indignity to the court that has been weakened not only by misaligned incentives that enable it to bring cases globally and yet rely mostly upon member states to enforce its actions, but also by the cozy relationship that has emerged between the ICC’s members and its cases. Thirty-four of its 123 members are African states and all thirty-one individuals that the office of the prosecutor has charged with crimes since the ICC began operating in 2002 are African. Since the court doesn’t have a police force, its supranational mission has fallen largely to its African member states to execute, meaning that the ICC needs those countries to carry out arrests even as they need, as sovereign nations, to conduct foreign policy initiatives that may involve the individuals being accused of a crime. That’s proven to be an unrealistic expectation. A year ago President Omar Hassan al-Bashir of Sudan, whom the ICC indicted for charges of crimes against humanity and genocide related to the Darfur conflict dating back to 2003, attended an African Union summit in South Africa, where he could have been arrested–and indeed a South African high court judge forbid him from leaving the country pending a hearing on whether to hand him over to the ICC. But back in 2015, South Africa’s President Zuma visited Sudan to reinforce political, economic, and social relations between the two countries which already have sixteen bilateral agreements in a number of fields including trade, agriculture, defense, policing, arts and culture, social development, and scientific cooperation. Result: Bashir was let go. South Africa is not alone in shirking enforcement duty for the ICC. Bashir has evaded arrest for years; in 2013, ICC-member Nigeria also declined to arrest Bashir when he attended a conference there. But again, Sudan and Nigeria have had a long history of economic, cultural and social ties. Sudan was offering scholarships for Nigerian students to study at its universities back then, but now ties are even closer. In August they announced that they’d work together to diversify their economies away from being so dependent upon oil revenues, partnering to build capacity in the film industry. More than five million Nigerians live in Sudan today. The court’s predicament is further complicated by its inefficiency, only five individuals have been tried in fourteen years. Yet by some estimates, the court’s activities have cost at least $1.5 billion. Thus the ICC doesn’t just suffer from the fact that major countries like the United States, China, and Russia have refused to subject themselves to the ICC’s jurisdiction. There are endemic problems in supranational bodies that must rely upon member nations to behave uneconomically in order for the organization to function. Yes, of course not all decisions should be made based upon economic factors–especially those related to genocide and war crimes–but evidence suggests that the ICC is having a hard time operating in its current form. Incentives drive behavior and when an incentive is behaviorally salient, organizations, like countries, are responsive to incentive-based cues. What may make the African nations change their behavior? As of now, it appears that the answer is nothing, for they’ve decided the value proposition of belonging to the ICC isn’t strong enough and so they’ve decided to drop out and move on.

The following is a guest post by Theresa Lou, research associate in the International Institutions and Global Governance program. After Burundian lawmakers voted overwhelmingly to withdraw from the International Criminal Court (ICC) on October 12, South Africa and Gambia quickly followed suit and declared their own decisions to leave the court. This isn’t the first time that member nations have threatened to withdraw from the court, but none has ever followed through. This time, however, the ICC’s future seems less certain. Other ICC members, such as Kenya and Uganda, may seek to “capitalize on the momentum,” as Indiana University Professor David Bosco told the New York Times, prompting concerns that the ICC will soon face an African exodus. In an article just published by Foreign Affairs, I argue that despite the ICC’s flaws—such as limited political will and uneven membership—it remains crucial to combating impunity, especially among high-level officials that have committed unspeakable crimes. To abandon the ICC would be to betray victims of atrocities everywhere.

South Africa’s Jacob Zuma administration’s notice to the United Nations of its intention to withdraw from the International criminal Court (ICC) has been received with consternation by civil society organizations such as Amnesty International. However, it is unclear, even unlikely, that the Zuma administration can take such a step without a parliamentary vote. It is also unclear whether parliament would go along. The administration’s move should be seen in the context of South African domestic politics, and as an effort for a politically weakened Zuma to shore up his ‘African’ credentials domestically. Meanwhile, the South African Constitutional Court will rule in November whether the Zuma administration broke domestic and international law by failing to turn over Sudan’s Omar al-Bashir to ICC jurisdiction as required when he visited South Africa for an African Union Summit. (The Court’s ruling will be based on the law at the time of al-Bashir’s visit; South Africa’s moves to withdraw from the ICC will be irrelevant.) The Zuma administration’s ‘respectable’ argument for withdrawal is that the ICC has failed to ‘consult’ on the issue of whether head-of-state immunity trumps an ICC indictment. (Head of state immunity would, of course, emasculate the ICC and largely defeat the purpose of its establishment.) Led by Kenya’s Uhuru Kenyatta and other African heads of state of dubious reputation, claims are regularly made that the ICC is ‘biased’ against Africa and hold Africans to a higher standard than elsewhere. At the most recent African Union (AU) summit, Kenya proposed “… a roadmap for the withdrawal of African nations” from the ICC. Though this proposal failed to pass, the AU interministerial committee is likely to present reform demands at the next meeting of ICC members. Just days before the South African announcement, Burundi became the first African nation to announce its withdrawal from the ICC. Accordingly, Zuma’s moves to withdraw from the ICC will be welcomed by the likes of Sudan’s al-Bashir, Kenya’s Kenyatta, Burundi’s Pierre Nkurunziza, and Zimbabwe’s Robert Mugabe—but not necessarily by South African public opinion. Following a string of scandals and court decisions against him, Zuma is a wounded political figure. The African National Congress’s poor performance in the August local government elections increases his vulnerability. South African civil society, well-organized and articulate, will ensure that administration efforts to withdraw from the ICC is vetted first by parliament and then by the courts. South Africa was one of the founders of the ICC, and the Treaty of Rome has been incorporated into South African domestic law. Hence, withdrawal would be difficult.

Contrary to misleading headlines, the International Criminal Court (ICC) did not acquit Kenyan Deputy President William Ruto and radio personality Joshua Arap Sang of charges related to violence in the aftermath of the 2007 elections. (Amnesty International cites an estimate that there were 1,200 deaths and 350,000 persons displaced by the violence.) Instead of acquittal, the ICC vacated the charges and discharged the accused, but without prejudice to the prosecutor’s right to reprosecute in the future. In 2015, the ICC prosecutor dropped charges against Ruto’s codefendant, President Uhuru Kenyatta. In both the Kenyatta and Ruto cases there have been credible allegations of witness bribery and intimidation, and the Kenyan government has not cooperated with the ICC. Hence, the ICC justices appear to have concluded that the trials cannot go forward at this time, though they could in the future. Uhuru Kenyatta and the Kenyan government has been a leader of the more general African effort to discredit the ICC. It is hard to see the outcome of the Kenyatta and Ruto cases as anything other than a major setback for the ICC and the effort to hold leaders, including a chief of state, accountable. In a press release, Michelle Kagari, Amnesty International’s deputy regional director of Africa, the Horn and the Great Lakes said, “This decision could be seen as a major setback by thousands of victims who have waited so long for justice. However, this is not the end of the road for the victims. In fact, victims should be able to seek justice for these crimes in the future as the accused have not been acquitted and can be reprosecuted for these charges either by the ICC or domestically.” Nevertheless, the Kenyatta and Ruto cases show the limitations of the ICC when the relevant government refuses to cooperate with it.

Voices from the Field features contributions from scholars and practitioners highlighting new research, thinking, and approaches to development challenges. This article is authored by Jocelyn Kelly, the director of Harvard Humanitarian Initiative’s (HHI) Women in War program. Last month, the International Criminal Court (ICC) convicted former Congolese Vice President Jean-Pierre Bemba of crimes against humanity and war crimes perpetrated by his rebel group, the Congolese Liberation Movement (MLC). It is a breakthrough case for a number of reasons. It establishes the strongest precedent to date for holding high-level commanders responsible for the actions of their soldiers, even when controlling troops from a distance, and it is the first ICC case that puts a spotlight on prosecuting sexual violence as a war crime. The United Nations tribunals for war crimes in the former Yugoslavia and in Rwanda have passed down high-profile convictions for rape as a war crime and crime against humanity, but this marks the first time the ICC has prosecuted rape as a crime against humanity. Questions about command and control are central to the prosecution of high-level commanders. Yet, the higher up the chain of command a leader is, the harder it can be to prove that a leader has direct control over their soldiers’ actions. As someone who has interviewed rebel commanders in central Africa about the topic of sexual violence for the past ten years, I understand the importance of looking at the behaviours and motivations of soldiers and their commanders, as well as the pitfalls and complexities of this task. The motivations of a rebel group can vary drastically based on the personalities of sub-commanders, on the current political climate, on timing within a conflict, and on the kind of relationship that rebels have established with civilians. The soldiers I talked to in the Mai Mai rebel group in eastern Democratic Republic of Congo (DRC) emphasized that even within a small sub-unit, soldiers’ motivations to rape varied from personal motivations, to a result of orders to bring back sex slaves, to its use as a tool to exert control over a population. In cases of personally motivated rape, commanders may turn a blind eye or tacitly condone such behavior, but, in more organized campaigns of abuse, there is a clear message from higher command. Soldiers I interviewed in DRC said if such orders were disobeyed, they would be punished. Dr. Elisabeth Wood at Yale has investigated the diverse profiles of violence exhibited by non-state armed groups. Some can effectively restrain certain types of violence, while other groups wield some types of “signature” abuses as ways to terrorize and subjugate populations. In the past, leaders who have promoted rape—whether by ignoring, condoning, or actively encouraging it—have largely escaped prosecution. It has been difficult to definitively prove that commanders ordered human rights abuses committed by their soldiers. These complexities—the fact that violence can change over time, across space, and in reaction to decisions made by sub-commanders—has made it extraordinarily difficult to prosecute crimes at the highest levels of command. Bemba tried to exploit this difficulty by claiming that he remained in Democratic Republic of the Congo while his troops had moved into neighboring Central African Republic, where some of the most systematic and horrific abuses were committed. The court found that throughout the group’s campaign of terror from 2002-2003, Bemba maintained full control over his troops—a pattern established by MLC intelligence reports, logs of communications, local and international media accounts, and non-governmental organizations’ reports. This represents a breakthrough in war crimes conviction: a commander who controlled his troops largely from a different country was still found legally culpable for his actions. This method of establishing responsibility for command and control is a new frontier in the ICC’s capacity to hold perpetrators of war crimes and crimes against humanity responsible for their actions, particularly as the crime of sexual violence in conflict gains more attention. For the past two years, I have been traveling to countries where the Lord’s Resistance Army (LRA) has been active. The LRA is notorious for its conscription of child soldiers, brutal abuse of civilians, and long campaign of sexual slavery of women and girls. In 2005, the ICC issued an arrest warrant for Joseph Kony, the group’s notoriously elusive leader. As the LRA has dispersed more and more widely across remote regions in central Africa, some have wondered whether Kony’s control over the group has loosened. However, a recent report published by my research group clearly documents the acute control Kony wields over his troops to this day. I have spoken with recently demobilized high-level combatants, former child combatants, and women and girls who have escaped the group. The message is resoundingly clear—that Kony continues to control from afar even the most minute aspects of group life, from dietary restrictions to where to travel, and exactly what kind of atrocities to commit. The Bemba precedent will make it easier to convict leaders like Kony if and when they are brought to justice in the future. The March ICC decision was momentous. It signals not an incremental gain in the movement to prosecute sexual violence as a war crime—it is an unprecedented stride forward in holding the highest-level leaders accountable for the crimes they orchestrate.

In 2012 radical, jihadist Islamist groups overran northern Mali with Taureg allies. Before they were defeated by French and Malian troops in 2013, the al-Qaeda linked rebels governed the territories they controlled according to what they represented as the principles of Salafist Islam. One prominent group was Ansar Dine, which continues to be active in northern Mali. While the group occupied Timbuktu its governance resembled that of the self-proclaimed Islamic State in Syria and Iraq. One of the similarities was the destruction of ancient monuments associated with other religions or varieties of Islam. The Islamic State’s destruction of ancient monuments in Palmyra, Syria, and Mosul, Iraq, are notorious. So, too, has been Islamic State looting and selling of ancient artifacts. Similarly, Ansar Dine radicals destroyed ancient tombs of local Muslim saints and a number of mosques in Mali. They also destroyed (or sold) ancient manuscripts. Individuals involved in such looting and destruction may be held personally accountable. The International Criminal court (ICC) has determined that the destruction of cultural heritage is a war crime. On September 18, 2015 the ICC issued a warrant for the arrest of Ahmad al-Mahdi al-Faqi, charging him with ordering the destruction of ten buildings of cultural, historical, and religious importance in Timbuktu between June 30, 2012 and July 10, 2012. The Niger authorities arrested al-Faqi and delivered him to the custody of the ICC on September 26. His first hearing was today. ICC prosecutors say that as a member of the radical group Ansar Dine, he played an active role when it occupied Timbuktu. Al-Faqi, a Malian, fled to Niger when the French and Malians drove Ansar Dine out of Timbuktu. The ICC’s chief prosecutor is Fatou Bensouda, herself an African. A citizen of The Gambia, she received her legal training in Nigeria. In a September 28 statement from the ICC, Bensouda said, “intentional attacks against historic monuments and buildings dedicated to religion are grave crimes.” She is quoted by the Financial Times as saying that the destruction was “a callous assault on the dignity and identity of entire populations, and their religious and historical roots.” Mali and Niger are parties to the Rome Statute of the ICC. In 2013, Mali asked the court to investigate possible war crimes associated with the radical occupation of the north. That investigation resulted in the indictment of al-Faqi. Niger as a signatory of the Rome Statute was legally obligated to apprehend al-Faqi if it could and hand him over to the custody of the ICC. It did so. Al-Faqi’s arrest and trial is a welcome step forward to holding accountable those who destroy cultural heritage. However, with respect to the Islamic State, neither Syria nor Iraq is a party to the Rome Statute, which limits any ICC role if and when the Islamic State is destroyed.

For this outsider, the parliamentary and judicial response to the Zuma administration’s failure to detain Sudanese President Omar al-Bashir and turn him over to the International Criminal Court (ICC) provides a window in to the state of South African democracy. To me, it is clear that the Zuma government broke both South African and international law by not only failing to hold al-Bashir, though specifically ordered to do so by the South African judiciary, but also facilitated his clandestine departure. South African law is relevant because the South African government at the time incorporated the ICC treaty into its own legal system. Neither the judiciary nor the parliament is taking the Zuma administration’s violation of the law quietly. The Pretoria high Court has “invited” the National Director of Public Prosecutions to look into how South Africa violated a court order to hold al-Bashir. Judge President Dunstan Mlambo said, “A democratic state based on the rule of law cannot exist or function if the government ignores its constitutional obligations.” The parliamentary debate was raucous. The official opposition, the Democratic Alliance (DA), stated that the Zuma government was in contempt of both the South African court and the ICC. A DA parliamentarian, Steven Mokgalapa said, “The African National Congress (ANC) government, led by Zuma has committed a crime of assisting a wanted man to run from the law.” Congress of the People (COP) leader Mousiuoa Lekota is quoted by the media as saying, “You lied to us. You said you will uphold the constitution, uphold the law and be an example. You have misled the people of our country and now we are ashamed before the nations of the world.” (“Terror” Lekota – his nickname comes from soccer – is a Robben Island veteran and was once an ANC stalwart; a former Minister of Defense, he broke with the ANC when it removed Thabo Mbeki from the party leadership.) The ANC defense boils down to the propositions that heads of state are immune from the ICC. (The Rome Statute specifically says that heads of state are subject to ICC jurisdiction.) Further, that al-Bashir was attending an Africa Union summit, rather than making an official visit to South Africa. However, some ANC leaders are roundly attacking the ICC and calling for South Africa to withdraw. In what is likely to be a swipe at the United States, ANC Secretary General Gwede Mantashe said on local radio that the ICC “is a tool in the hands of the powerful to destroy the weak and it is a court that is focusing on Africa, Eastern Europe, and the Middle East.” He said South Africa should consider leaving the ICC: “If I was in government, I would give notice, get out of that, it was not what was envisioned.” Justice and Constitutional Development Deputy Minister John Jeffrey is quoted as saying that the ICC “has diverted from its mandate and allowed itself to be influenced by powerful non-member states. We signed up for a court that was going to hold human beings accountable for their war crimes – regardless of where they were from. We perceive it as tending to act as a proxy instrument for those states who see no need to subject themselves to its discipline, to persecute African leaders, and effect regime change on the continent.” The al-Bashir episode provides a muddled picture of South African democracy. The government appears to have acted illegally. The judiciary and the legislature have reacted vociferously. But, nobody seems to expect that anything will happen.

From the perspective of the expectations of Nelson Mandela, South Africa has been treading water, if not worse, especially since the national elections of 2014. Economic growth remains an anemic 2 percent or less, thereby challenging Mandela’s assumption that poverty could be eliminated rapidly. Public concerns about corruption remain unaddressed. Parliament appears increasingly dysfunctional. Its procedures are under assault by Julius Malema’s Economic Freedom Fighters and stonewalling tactics by the Zuma government over corruption. All the while, the Zuma government appears to be consolidating executive power at the expense of the other, theoretically co-equal branches of government. It has twice kept out the Dalai Lama, apparently to keep Beijing happy, while it welcomed Sudanese President Omar al-Bashir with a red carpet to keep the African Union happy. Though wanted by the International Criminal Court (ICC) for genocide, the Zuma government forestalled Bashir’s arrest, which was required by South African law and mandated by the judiciary, by assisting in his clandestine departure. Once one of the strongest supporters of the ICC, the ruling party, the African National Congress (ANC), now denounces it in neo-colonial terms similar to the denunciations by Zimbabwe’s Robert Mugabe and Kenya’s Uhuru Kenyatta. Democracies often go through bad patches of governance. However, democratic institutions including an independent judiciary, civil society, and the rule of law provide a corrective mechanism. Up to now, all three have fulfilled this role in post-apartheid South Africa and have been a basis of optimism about the future of the country. The al-Bashir incident will be a test of the extent to which that optimistic conclusion is still valid. The bottom line appears to be that the Zuma government broke South African law by failing to arrest Bashir and undermined the judiciary by failing to implement its ruling. The courts are now demanding that the Zuma government provide an explanation in seven days for how Bashir entered the country, was not arrested, and then left, though there was a court order requiring the government to ensure that he not leave. Civil organizations are saying that they will likely sue the government for contempt of court, but will delay filing until the government responds to the courts with its explanation. The opposition Democratic Alliance has roundly denounced the government’s behavior. It can be anticipated that it will raise the issue in the National Assembly. Meanwhile, the media, including social media, is expressing outrage over the Zuma government’s behavior. Nothing that happens in South Africa now will result in Bashir’s arrest and handover to the ICC. But the courts and civil society may be able to hold the Zuma government accountable. However, if they fail to do so, or are successfully thwarted by Zuma and the ANC, South Africa will have moved away from democracy conducted according to the rule of law. The next week or so could be significant for South Africa’s future.