Sudanese President Omar Al-Bashir has flown out of South Africa despite a court order barring him from leaving while judges considered whether he should be arrested to answer charges of genocide on a warrant issued by the International Criminal Court. The role of the South African government in defying the court order and permitting Bashir to leave, having attended an African Union summit, is an indication of how far the long-governing African National Congress has moved away from its early ideals of justice and equality. However, the most immediate loser in this affair is the International Criminal Court. In the Arab world, there has been much enthusiasm for the court in the wake of Palestine's admission in April as a state member. The move opens the possibility for action against Israel for war crimes, even though the Israelis, along with the Americans have not recognized the court. But the ICC is not yet the truly international body to which accusations of crimes in war, genocide and major human rights' violations can be referred. It is an awkward fact that since it was established under the Treaty of Rome in 2002, all its prosecutions have been of individuals in Africa. Though the court is investigating cases in Afghanistan, Colombia, Georgia, Honduras, Iraq, Korea, Venezuela and Ukraine, this focus on Africa has infuriated the African Union. The political cost to South Africa's President Jacob Zuma of allowing the arrest of Bashir at an AU summit was clearly deemed to be far greater than ignoring a local court order and the ICC. And the awkward truth is that the ICC is fit to be ignored. Though an organ of the United Nations, it has no teeth of its own. It relies on being lent a pair of judicial dentures by the Security Council whose permanent members, particularly Russia and China, all too often refuse. Moreover, the court has yet to inspire widespread confidence. Its chief prosecutor Fatou Bensouda, who has been with the ICC since 2004, moving to head prosecutions in 2012, was made justice minister in her native Gambia after Yahya Jammeh seized power in a 1998 coup. Though she later fell out with Jammeh and was fired, it is alleged that she had a checkered ministerial record, harassing opposition political parties and bullying press and broadcasters. Her appointment to succeed her boss, the Argentinian Luis Moreno-Ocampo, was backed enthusiastically by the African Union, in protest at Moreno-Ocampo's exclusively African prosecutions. That backing has since waned, as she has pressed ahead with these charges, including those of genocide against Bashir. International lawyers also question her judgement. Prime examples are the cases against Muammar's Gaddafi's son and heir apparent Saif Al-Islam and the dictator's chief enforcer Abdullah Senussi, both wanted by the court for war crimes and human rights violations before and during the 2011 revolution. Bensouda continues to demand Saif's extradition from Libya because he will not receive a fair trial but has assured the UN that the trial of Senussi in Libya is fair. In the chaotic Tripoli proceedings of 39 defendants, including Saif, no detailed charges have been produced, no evidence published and no record of the trial, from which outside observers have been largely excluded, made available. Yet Bensouda has said that she believes that Senussi is being tried properly and has dropped the demand that he also be sent to the ICC for its own trial. This, as they say, does not compute.
