Al-Bashir and the International Criminal Court
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.