Editorial: Those cracks in the ICC

In large swathes of Sudan, and many other countries around the world, great numbers of people believe that Omar al-Bashir is a murderous thug, who countenanced genocide and other crimes of inhumanity against his own people. In Darfur, in western Sudan, which has suffered years of strife, Mr Bashir is accused of unleashing Arab militias on black opponents, leading to the deaths of more than 400,000 people and the displacement of more than a million.

Six years ago, the International Criminal Court (ICC) issued warrants for Mr Bashir's arrest and for him to be brought before the court at The Hague to be tried for his alleged crimes. This week, when Mr Bashir turned up in Johannesburg for a summit of the African Union (AU), a South African court issued an interim order preventing him from leaving, pending a hearing for his extradition to The Hague.

Yet, on Monday, the Sudanese president's private jet took off from a South African military base, in defiance of the court and in clear connivance with Jacob Zuma's government. This newspaper is conflicted by the behaviour of the South African government, on several fronts.

The ICC was intended as the final bastion against the impunity of dictators and autocrats whose domestic legal and political systems were incapable of, or unwilling to, stand against their worst abuse of the rights of their citizens. Mr Bashir is numbered among this crowd.

Furthermore, we were invested in post-apartheid South Africa as a country built on the rule of law, with its foundation deep in the respect for human rights. What Mr Zuma's government perpetrated this week calls into question where it stands on the ideal of the separation of powers and the independence of the judiciary, and, ultimately, the rule of law. It is a short step from here to a weakened commitment to adherence to fundamental human rights.

ICC selective, racist

But, even as we support the ideals of the ICC and resist the arguments of moral equivalency, we nonetheless appreciate the basis for the absence of authority of, and broad respect for, the ICC. African leaders believe that the court is selective, racist even, in the execution of its powers.

Of the 22 cases and 32 individuals indicted since its establishment in 2002, all have been Africans. Recently, in the face of such criticism and the absence of cooperation from the AU, the ICC has opened investigations in a handful of other countries - but most in Eastern Europe and other developing country regions.

There is a sense, too, that leaders of powerful Western countries are immune to censure, much more prosecution, by the court, not necessarily for their behaviour at home, but actions they may take elsewhere. Indeed, it was, in part, to ensure that it was not subject to the ICC's authority that the United States, having failed to acquire immunity for its citizens, declined to ratify the Statute of Rome, by which it was established. America and some other members of the United Nations Security Council, which can remit issues to the court, are not members of it.

While we support the ideals of the ICC and believe it should be allowed to do its job impartially, the deeper embrace of its authority will happen when the law and its application are universal and applicable also to the powerful.