Sudanese President Omar al Bashir appears to be back home safely in Khartoum after barely escaping arrest in South Africa, where he was attending an African Union summit. On Monday, al Bashir defied a South African court order barring him from leaving the country ahead of a decision on whether the president should be arrested to face genocide charges at The Hague. This was al Bashir's first trip to South Africa since the International Criminal Court issued a warrant for his arrest in 2009. Although the drama over al Bashir was short-lived, it draws attention to Sudan's broader geopolitical repositioning, which will have longer-term consequences. The Sudanese president seems to have barely avoided a very precarious situation, but he is unlikely to be arrested and brought before the court any time soon. Nonetheless, the intersection of the International Criminal Court's role in Africa and Sudan's apparent attempts to change its geopolitical situation make it an interesting incident.
As a consequence of a wider regional diplomatic offensive, Saudi Arabia seems to have secured Sudan in its corner. In the West, however, Sudan is still largely regarded as an international pariah, in league with Iran and smuggling arms to Hamas and other non-state actors after having served as al Qaeda's global base in the early to mid-1990s. The reduced tensions between the United States and Iran as a result of the ongoing nuclear negotiations, along with Riyadh's desire to isolate Iran from its allies, have lessened the degree to which Iran and Sudan require each other's support. By offering financial rewards and potential support for Sudan's much further-reaching diplomatic reintegration, the Saudis seem to have effectively cut the connection between Sudan and Iran.
This brings Sudan to an intersection where it could shed its connections with the "axis of evil" and start a slow path toward rehabilitation. This is where the International Criminal Court indictment comes into play. The West may be interested in restarting cooperation with Sudan; in the past, Khartoum and Washington had closer security ties, and in the 1970s Sudan helped secure the release of U.S. hostages from Eritrean rebels in Ethiopia. However, Bashir's terrible human rights record relating to the allegations of genocide in Sudan's Darfur region rules out most prospects of direct U.S. interaction with the president, as do current allegations of Sudan's involvement in the South Sudanese civil war. This does not rule out all levels of a rapprochement; indeed, Khartoum and Washington seem to have had some limited contact recently, and a group of U.S. officials is reportedly expected to visit Khartoum sometime soon. The indictment might not be as much of a barrier to reconciliation at government levels below al Bashir, though it will still define the scope that such a rapprochement could attain.
This is also an interesting case of how International Criminal Court indictments play a practical role in geopolitics, despite their limited means of enforcement. The indictment has constrained al Bashir's travels abroad significantly, and Sudan's geopolitical imperatives could be held back if several foreign governments cannot openly negotiate or cooperate with the president personally. In this specific case, although the South African government initially had no intent to block al Bashir's access to the African Union summit and allowed him to leave the country without arresting him, a local human rights group was able to force the South African judiciary to take legal action.
The incident also highlights an inherent weakness of the International Criminal Court: the need to exercise international law while being subject to the national sovereignty and political interests of its signatories. Without a direct means of enforcing its indictments, the court has had limited successes in prosecuting sitting heads of state — the personifications of the very national sovereignty that limits the court's jurisdiction. The court has prosecuted some former political leaders, but only once their home countries had rejected them or once a third party, at its own risk, arrested them. This dynamic serves as a powerful incentive for a leader such as al Bashir to stay in power. If he were to step down, he could have far more trouble avoiding prosecution and potential imprisonment.
Recently, this weakness has been most evident in the International Criminal Court cases against Kenyan political leaders over their role in the violence following Kenya's 2007 elections. Kenyan President Uhuru Kenyatta cooperated with the court, but there was not much the court could do, and in the end the case against him was dropped. Without its own ability to enforce indictments, the court is left at the mercy of individual signatories' willingness and ability to do so. This is why it is so notable that the South African government was unable to block its judiciary from ordering al Bashir to remain in country until a court case decided whether he would be arrested on behalf of the International Criminal Court. The South African government was not behind this decision; a human rights organization initiated a legal procedure forcing the judiciary to take action. Pretoria did not want to wade into the trouble of blatantly interfering with the judiciary, although it also did not actively prevent al Bashir from leaving the country.
The interplay of al Bashir's indictment with Sudan's potential international rehabilitation will raise internal pressure on his government. Al Bashir has all the more reason to hold on to power because of the protection it offers him against the International Criminal Court's arrest warrant, but the indictment establishes him as a major disruptor to diplomatic relations. Positive relations between Sudan and the West are unlikely to entirely blossom so long as al Bashir remains in charge of the country. Riyadh's move to pull Khartoum into its sphere of influence could be an important first step, however, and diplomatic expectations likely will start having some effect on Sudanese decision-making.
