Al-Bashir and the International Criminal Court

Omar al-Bashir

Omar al-Bashir

IT was to Africa’s utter embarrassment that the recently concluded 25th Extra-Ordinary Meeting of the Assembly of Heads of State and Government of African Union (AU) in Johannesburg descended into a farce with the presence of Sudanese President Omar al-Bashir.

The order of restriction of a Pretoria High Court Judge on the visiting Sudanese President pursuant to the International Criminal Court (ICC) warrant of arrest sadly made a mess of what was ordinarily a good summit. But that is Africa: The best and the worst in a mix but one in which the worst trumps the best.

The AU meeting deliberated on Continental Free Trade Area (CFTA), integration through increased trade and interconnectivity through improved infrastructure.

Despite the importance of that meeting, the order by the South African court for the arrest of the Sudanese leader tainted the summit, putting the South African government in a dilemma over acceding to the ICC warrant or respect its own sovereignty as well as the diplomatic immunity invested on visiting heads of state according to the provisions of the Vienna Convention on Diplomatic Relations.

No one, of course, should condone the atrocities reportedly committed by al-Bashir. He should face trial for his actions. In 2005, the Sudanese president was indicted by the international commission of inquiry on Darfur.

Seized of the situation in Darfur, the United Nations Security Council under Article VII had in 2004 instructed the Secretary General to institute an international commission of inquiry into the violations of international humanitarian law and human rights in Darfur.

The commission in its report in 2005 submitted inter alia that: “The commission established that the government of the Sudan and the Janjaweed are responsible for serious violations of international human rights and humanitarian law amounting to crimes under international law.

In particular, the Commission found that government forces and militias conducted indiscriminate attacks, including killings of civilian, torture, enforced disappearances, destruction of villages, rape and other forms of sexual violence, pillaging and forced displacement, throughout Darfur. These acts were conducted on a widespread and systematic basis and therefore may amount to crimes against humanity.”

In 2009, ICC followed up with a consequent issuance of a warrant of arrest on President al-Bashir over the mindless killings by his forces and militias in Darfur, an enclave of separatist black Africans seeking autonomy from the Arab government in Khartoum.

The people of Darfur who are seeking autonomy from Khartoum have been at the receiving end of repressive activities of the Sudanese government. The actions of the government had led to the death of over 400,000 people, about 1.65 million internationally displaced persons (IDPs) and about 200,000 refugees in Chad.

These acts of repression are by no means over. On account of the ICC warrant, the Sudanese President has been a pariah, embattled all round the world and dodging situations where his security might be compromised due to the subsisting warrant.

In his visit to South Africa, the Sudanese government argued that they got the assurance for respect of the diplomatic immunity enjoyable by Heads of State from the South African government. The host, however, maintained a dignified silence allowing the ruling African National Congress (ANC) to vent its views on the matter.

According to ANC, the South African government granted diplomatic immunity to all visiting heads of state and took umbrage at the high-handedness of the ICC. “The ANC holds the view that the International Criminal Court is no longer useful for the purpose for which it was intended.

Countries mainly in Africa and Eastern Europe …continue to unjustifiably bear the brunt of decisions of the ICC, with Sudan being the latest example.” In July 2013, the Nigerian government turned down a similar request to arrest the Sudanese who was on official engagement in Nigeria.

No doubt, one of the issues arising from the saga is the perspective on crimes against humanity and the second issue is the question of equity and justice in the international system.

No people or country should condone leaders and perpetrators of crimes against humanity. Such crimes stand condemnable anytime, anywhere.

On the question of equity and justice within the international system, entrenching the principles of equity and justice are not negotiable if the world is to prevent free riders and global anarchy. What is good for the goose is also good for the gander.

There should be no exceptions, all must be brought to justice. It is to be noted however, that the unequal and discriminate handling of cases of crimes against humanity is now compelling a rethink of the Rome Statute which birthed the ICC.

A pattern would seem to have emerged in which countries and regions perceived as weak in the international system are scapegoated while the big powers go away scot-free.

This is why African leaders are giving the Rome Statute a second thought. Looking across the continent, Charles Taylor, the former Liberian leader is serving prison terms in The Hague; Laurent Gbagbo, former Ivoirien leader is also facing charges in The Hague and until recently when charges against them were dropped for insufficient evidence, the Kenyan President, Uhuru Kenyatta and his deputy, William Ruto, were on trial at the ICC.

It is important, however, to note that agencies of global governance must be imbued with democratic principles and equity if they are to enjoy global legitimacy.

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  • Ajibade Jegede

    This is quite good and pungent. However, I am of the opinion that the editorial would have been a complete script if a workable solution that will ease nations of the embarrassment of arresting their host is proffered. It is high time that the UN. sit to form a special committee comprising of nations that will serve in the capacity of policing recalcitrant such as Bashir. The nominated or appointed nations are unexpectedly to be given formidable backing in terms of weaponry and other logistics. We don’t need to be running after one rogue president or the other. This special unit will grab such devil and make him available for appropriate judgement. There must be a chatter for this under the UN.

    • Dejandon

      “..nominated or appointed nations are unexpectedly to be given formidable backing in terms of weaponry and other logistics”

      Does Afghanistan, Iraq and Libya come to your memory? Can’t you see how the “nominated or appointed nations” have been very successful in these Countries that have now become paradise after their ‘recalcitrant’ leaders were yanked off?

      What more proof do we need that your suggested method works beautifully well?

      • Ajibade Jegede

        I am wandering about the type of paradise you are talking about and the successes you are making us to believe. One thing we are talking about is deterrence and consider the latent meaning of my suggestion. I am not particular about the macro but those who would volunteer themselves to be used for mass destruction of people. In those countries you made reference to, what has been the order of the day? unabated killings and destruction. I prefer, Israel’s strategy, go for the arch enemy and neutralize him simplicita.

  • Ojiyovwi

    Killing one person allbeit by ‘colateral’ means is as bad as killing 1m persons. The ICC is irelevant and will remain so even as they sellect token blank judges in front of the all-white crew of investigators and prosecutors. I see criminal white leaders and ex-leaders feted all round the world including our continent Africa. These team of colonial operatives chase and embarass our black and East Europeans at every opportunity to continue to remind us who the master is. Only an uncle tom will take the ICC seriously in a stupid attempt to gain public endorsement from the master. The ICC can ‘Go Hang’ according to the freedom fighter Mugabe. I am still waiting for when SA will seize her ancestral right to be free from the white masters who are still there sucking the life out of the country with the aquiescence of a bunch of uncle toms who are happy with the crumbs from under the table of the well fed white masters.