The president of Sudan, who is wanted on charges of genocide and war crimes against his people, could soon find it harder to travel abroad.
Judges at the International Criminal Court strongly criticized South Africaon Thursday for failing to arrest the president, Omar Hassan al-Bashir, when he visited Johannesburg for an African Union meeting in 2015.
The court explicitly rejected South Africa’s argument that Mr. Bashir was immune from arrest as a head of state leading his country’s delegation to the meeting.
Mr. Bashir has evaded the reach of international law since the court issued a warrant for his arrest in 2009, but he has managed to travel. Watching which countries shun Mr. Bashir and which welcome him has become something of an international parlor game. (He recently skipped a meeting in Saudi Arabia, but this week he accepted an invitation to visit Moscow.)
The underlying question, though, is a grave one: Will a sitting head of state, wanted on charges of crimes against humanity for 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 someday be yes.
There should have been no doubt about Mr. Bashir’s immunity, a panel of three judges said, because South African diplomats consulted the court before he arrived and were told that their country was obliged, as a member of the court, to arrest and hand over Mr. Bashir.
For all their criticism of South Africa, though, the judges declined to formally refer the matter to the United Nations Security Council because, they said, doing so had borne no results in the past.
“It was interesting: The judges said there wasn’t a need for action because our own courts had already ruled” that the government had failed to meet its obligations, Kelly-Jo Bluen of the Institute for Justice and Reconciliation said by telephone from Johannesburg. “But maybe they were a bit less harsh against the government, and saying, ‘Let’s keep South Africa on board.’”
Richard Goldstone, a prominent South African judge, said he believed “the court dealt a little more gently with South Africa, and I hope it gives the government a reason not to persist in wanting to withdraw from the court, which would be a tragedy.”
In a separate opinion, one of the three judges, Marc Perrin de Brichambaut, raised an argument that may open new legal avenues for rights activists. The judge said that South Africa and Sudan were both obliged to arrest Mr. Bashir because they had both signed the United Nations genocide convention, which took effect in 1951. Some 147 countries have ratified that treaty, nearly two dozen more than have joined the International Criminal Court.
Mr. Bashir has been accused of genocide involving three tribes in the Darfur region of western Sudan. The charges cover violence that erupted there in 2003 when Mr. Bashir ordered a counterinsurgency in the conflict between his Arab-dominated government and non-Arab rebel groups.
According to prosecutors, government militia gangs backed by military and police helicopters looted and burned hundreds of villages, bombed schools, poisoned wells and engaged in systematic rape of women and girls. The United Nations estimates that about 300,000 people died and more than two million were driven from their homes.
The court ordered Mr. Bashir in 2009 to face charges of war crimes and crimes against humanity, and judges added the genocide charges later.
Mr. Bashir has tried to enlist other countries in a campaign against the court, but he has never found enough backing on the Security Council to get the case against him dropped.
Three other Sudanese officials are also the subject of warrants from the court: a former minister of humanitarian affairs, Ahmad Muhammad Harun; a militia commander, Ali Kushayb; and a former defense minister, Abdel Rahim Muhammad Hussein.
Mr. Bashir has made a point of traveling in Africa and Asia to demonstrate that he commands some sympathy in the world. But he has had to avoid the United States, Western Europe and other places where he might be arrested. Some countries, including Turkey and Saudi Arabia, have quietly disinvited him; in others, leaders have maneuvered to avoid appearing in official photographs with him. He disappeared suddenly from an official luncheon in Nigeria, where he was scheduled to speak, after getting word that local lawyers were seeking his arrest.
South Africa dissuaded Mr. Bashir from attending the inauguration of President Jacob Zuma, warning that he would risk arrest, but Mr. Zuma’s government argued that Mr. Bashir was entitled to attend the 2015 African Union talks. By the time a local court ruled that South Africa was required to arrest Mr. Bashir in any event, the government had already allowed him to leave.
The episode played a crucial role in South Africa’s decision in October to pull out of the International Criminal Court, a step that led to wide speculation that other African nations would follow. But only Burundi and Gambia walked out, and Gambia reversed its decision after a new government took office.
South Africa is still a member. Mr. Zuma’s decision to pull out was blocked by the country’s High Court as “unconstitutional and invalid” because it was not approved by Parliament; the government has said it will seek that approval.
Russia’s decision to welcome Mr. Bashir in August is another snub for the court. Russia withdrew its signature from the court’s founding treaty, which it had never ratified, in November. The United States had also signed without ratifying it, and the administration of George W. Bush withdrew the signature. Even so, American policy has been to quietly support the court.