Redefining jurisdictions: The ICC and the limits of International Justice

The recent tribulations of President Omar al-Bashir at the African Union Summit in South Africa highlighted some of the challenges of enforcing international law in apprehending accused persons. In events rivalling a Shakespearian classic, a sitting African head of state suffered the humiliation of having to be held to accountable for the abuses of power during his time in office. South Africa is a signatory of the Rome statute and is obligated to arrest Bashir as part of its role in cooperating with the court.

In addition to this, the fact that a Pretoria Court issued a warrant for the arrest of Bashir for fleeing the country, it illustrates the domestification of the Rome Statue into South African law. Bashir’s case is very interesting because it encapsulates issues of politics, diplomacy and international justice. It is however not clear the extent to which one would circumvent the other.

Under the Vienna Convention rules on diplomatic protocol, it is a faux pas to arrest visiting dignitaries on political grounds. However, on the other hand, as a signatory to the ICC, South Africa is duty bound to effect the arrest of Bashir. While the arrest of Bashir was highly unlikely, the South African government was put in a very awkward position.

Then there is the political question of the African Union (AU) refusing to cooperate with the ICC. This comes on the backdrop of major powers violating International laws and not facing any consequences. The AU is well within its bounds not to cooperate with the ICC. However if this is the stand it is taking, then it is only prudent for all member states of the AU to pull out of the ICC en masse. This is unlikely to happen because of the benefits some members of the AU perceive they can get when they decide to cooperate with the ICC (as the recent warrant for the arrest of Joseph Kony illustrates).

Another issue that undermines the AU’s position is its weak financial position. While speaking forcefully on matters ICC, most members of the AU are not or cannot pay their dues to the organization. This unfortunately leaves the organization open to financial blackmail from donors who demand certain favors in return for financial support.

All in all the African Union highlighted the complexity of political, legal and diplomatic challenges facing the African continent. It also brought out the contradictions in the positions of African states that claim to support the rule of law, while at the same time flaunting the laws in their national jurisdictions (in the case of Bashir, South Africa ignoring a court order from its courts).

Going forward little will change in relation to the ICC. As long as state parties continue to ignore warrants of arrest from the organization and major powers only want to selectively pick and choose what parts of International Law suits them, the tenets of neo-realism will continue to dominate International Relations at the expense of equal justice for all states, large and small. Some states will remain more equal than others.