Editorial:  A handcuffed International Criminal Court

A bizarre drama that played out in South Africa this week underscores just how difficult it is to bring the world’s bad actors to justice.

The International Criminal Court at The Hague has issued two arrest warrants accusing Sudan President Omar Hassan Ahmed Bashir of war crimes, crimes against humanity and genocide dating from his actions a decade ago overseeing Sudan’s genocide in Darfur. So on Monday, when Bashir was in South Africa — a signatory to the ICC — the country’s High Court ordered the government to keep him from leaving while it considered demands by human rights groups that he be arrested on the ICC’s warrants.

The government insisted that Bashir, who was in the country for a meeting of the African Union, enjoyed diplomatic immunity. While it haggled with the human rights groups in court, Bashir jetted back to Sudan from a South African military base. The court ultimately ruled that he should have been arrested, and demanded an accounting by the government for why it ignored the court’s order.

The incident involves regional African politics and South African constitutional issues, and will probably echo there for some time. But it also reverberates globally. Bashir, the only head of state currently under ICC indictment, has moved freely among those African nations whose leaders dismiss the ICC as a racist institution because it has, to date, indicted only Africans. Under its charter, the ICC can only bring cases involving member nations in which the legal system has failed. (Despite that, the United States, fearing prosecution of soldiers and other agents of the government, has not joined.) It can also take up cases referred by the U.N. Security Council, although vetoes by the five permanent members have added a layer of international politics to the meting out of justice — China and Russia, for instance, have blocked attempts to bring a case against Syrian President Bashar Assad.

After more than a dozen years and $1 billion, the ICC has brought just 22 cases and has obtained just two convictions. The court has no police force to arrest those it indicts, and, as became clear in South Africa this week, its credibility is so undermined that some member states ignore its warrants.

The idea of an international tribunal as a court of last resort for cases involving war crimes and horrific human rights abuses is appealing, and the tribunals set up to punish atrocities in the former Yugoslavia, Rwanda and Cambodia have worked to some effect. Unfortunately, the ICC, which has a broader mandate, has proved to be expensive and, so far, ineffective. The victims of inhumanity deserve better.

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