Arguments FOR the arrest of Omar al-Bashir are more convincing than the counter arguments.
The warrant of arrest issue by the International Criminal Court (ICC) against Sudan’s Omar al-Bashir has literally divided the world into two opposing halves. On the one hand is the United Nations (whose Secretary General expressed his disappointment with South Africa for not arresting al-Bashir in June), the United States, the European union, human rights groups/activists and ordinary individuals who are convinced that al-Bashir has a case to answer. On the other hand, the African Union, African states, and ordinary individuals who vehemently oppose the indictment of president al- Bashir. Each side has long made clear why it sticks to its guns. China and Russia seem to be oblivious of the never-ending drama. It must be said that the referral of Sudan to the ICC by the UN Security Council (UNSC) would have not happened had China and Russia (both veto holding members of the UNSC) vetoed the proposal. Are China and Russia being hypocrites?
Some background
Sudan is a signatory to regional and international human rights instruments which make the promotion and protection of human rights an international obligation for states. States, conscious of the mass atrocities which led to and occurred during the two World Wars, have agreed that massive violations of rights is a matter of concern to all states. Holding rights violators accountable before a court of law will end impunity and deter would-be violators. This is seen as a sure way of maintaining peace and security within and between states. The 2005 World Summit Outcome Document has added yet another layer of responsibility for states to protect persons within their jurisdiction. When a state manifestly fails to protect, the responsibility cedes to members of the international community. This implies a collective responsibility of states to not only protect human rights, but also take appropriate measures to bring alleged offenders to account.
During the conflict in the Darfur region of Sudan, the international community had reasons to believe that Mr al-Bashir had committed crimes that fall under the jurisdiction of the ICC. The failure of the government of Sudan to try high profile suspects such as al-Bashir, prompted the UNSC to pass a resolution referring the situation in Darfur to the ICC. The accused is presumed innocent until proved otherwise by the court. Those who call for the arrest of the Sudanese president argue that if he were confident of his innocence, he would have appeared before the ICC to clear his name.
Inconsistency within the ranks of the “anti-ICC camp” makes their case even weaker. Uganda’s President Yoweri Museveni, although an acrid critic of the ICC, had agreed in January (albeit reluctantly) to have a senior commander of the Lord's Resistance Army (LRA), Dominic Ongwen, transferred to the court. It is clear that African “leaders” are only interested in protecting their own from international criminal justice. They have no qualms about sending their opponents to the ICC despite the loud noises they make against the court.
The man and the charges
Omar al-Bashir, a military dictator, is among the most controversial political figures in Africa. What makes him stand out further is that he is the first sitting head of state to be indicted by the ICC. This view is just one of the multifaceted and rough edges of the accused. Mr al- Bashir is alleged to have committed, genocide, war crimes and crimes against humanity in the Darfur region of Sudan against dark skinned Africans (who are non-Arabs). Today, among the ranks of his army of offline and online defenders are many dark skinned Africans who are non-Arabs! One will be forgiven for seeing these people as completely mad or as not well informed individuals, but this conclusion will leave many questions unanswered and raise even more. Why are so many people in Africa throwing their weight behind a man who is wanted for the most heinous international crimes? Are they united in their support of Mr al-Bashir by their common disdain for the ICC? Or are they really convinced that the accused is innocent and does not need to appear before the court to clear his name? Many questions come to mind as one ponders over this thorny and sometimes impassioned yet delicate subject.
Because crimes within the jurisdiction of the ICC are not subject to any statute of limitation, the indictment by the court means a lifetime of worry for Mr. al- Bashir.
His supporters
Arguments to have some Western leaders namely former US president George W Bush Jr. and former British PM Tony Blair charged with international crimes for their roles in the invasion of Afghanistan but more crucially for the controversial US-led invasion of Iraq, which then-UN Secretary General Kofi Anan said was illegal under international law, are often advanced by al-Bashir supporters. This argument seems to be the key point raised by defenders of Mr al-Bashir each time one mentions the impending warrant of arrest issued by the ICC against him. For one to argue that the ICC should do NOTHING at all because it has done nothing in pursuing suspected war criminals in the US, Europe and Israel, is a weak argument. In spite of the slow movement of the arms of international criminal justice, one must not dismiss the need to start somewhere. Asking the ICC to drop charges against the Sudanese president until such time when it issues warrants of arrest for other politicians in other parts of the world may amount to saying that the court should wait until such time when it can issue arrest warrants for any other individual or individuals who may be suspected of committing crimes that fall within the jurisdiction of the court. This view is, at best, disingenuous.
Others are strongly of the view that the African Union (AU) and individual African countries can handle criminal justice and deal with any violations that may occur on the continent without “interference” from the ICC. This view lacks any iota of merit. The African Court on Human and Peoples’ Rights has no jurisdiction to try African leaders and their top lieutenants for so long as they are in office.
Immunity/Impunity
Faced with leaders, at least some of them including Bashir, who want to die in office, it is hard to see when and how such people could be held to account for any allegations levied against them. Immunity at the level of the AU and the lack of legal and political accountability in many African countries leave any victims of human rights violations, by political leaders, with no real chances of ever getting legal redress. It is hard to imagine parliament in an African country impeaching a president or prime minister and then putting them on trial for any offences – including international crimes. Given the culture of immunity/ impunity on the continent, the international criminal justice system is forced to act against those for whom it has enough evidence to indict. Ending impunity is crucial to building sustainable peace, and in attracting foreign direct investment, and ensuring prosperity anywhere in the world. This need is particularly relevant in Africa – the poorest continent in the world.
The verdict of history
Both sides of the divide seem to agree on the need to end impunity and deliver justice to victims of international crimes. The intractable difference is in the methodology (where, when and how to proceed) to achieve the shared goal of delivering justice and ending impunity in Africa. The AU and its supporters will continue to lose the argument until such time when they come up with a credible and viable alternative to the current international criminal justice system. There is no alternative for now. Until and unless Africa has a credible criminal justice system that can end impunity and bring leaders to account, the need for the ICC to intervene will always be there. While it is easy for those who are not victims of international crimes to dismiss the work of the ICC as “neocolonial” witch-hunt, victims of untold violence, brutality and mass murder do welcome justice irrespective of who or where that justice is coming from.
States that sign and ratify the Rome Statute – the treaty that established the ICC – are under international obligation to recognize and respect the jurisdiction of the court as well as cooperate in the enforcement of arrest warrants issued by the court.
The international human rights regime has narrowed down the scope of state sovereignty which had hitherto given heads of state absolute immunity irrespective of the gravity of their alleged crimes. The argument that a sitting president should not be arrested leaves festering wounds in hearts and minds of victims as the “sitting president” will cling on to office for life for his protection. This is an insult to the memories of the victims.
The verdict of history will vindicate those who call for President Omar al- Bashir to be arrested and brought before the ICC.
Note: For more on this, and the trigger mechanisms for ICC jurisdiction, read the online version of a similar article I wrote on The Standard newspaper in 2014, “Meet me in Addis Ababa: African politicians and the ICC ”.
The warrant of arrest issue by the International Criminal Court (ICC) against Sudan’s Omar al-Bashir has literally divided the world into two opposing halves. On the one hand is the United Nations (whose Secretary General expressed his disappointment with South Africa for not arresting al-Bashir in June), the United States, the European union, human rights groups/activists and ordinary individuals who are convinced that al-Bashir has a case to answer. On the other hand, the African Union, African states, and ordinary individuals who vehemently oppose the indictment of president al- Bashir. Each side has long made clear why it sticks to its guns. China and Russia seem to be oblivious of the never-ending drama. It must be said that the referral of Sudan to the ICC by the UN Security Council (UNSC) would have not happened had China and Russia (both veto holding members of the UNSC) vetoed the proposal. Are China and Russia being hypocrites?
Some background
Sudan is a signatory to regional and international human rights instruments which make the promotion and protection of human rights an international obligation for states. States, conscious of the mass atrocities which led to and occurred during the two World Wars, have agreed that massive violations of rights is a matter of concern to all states. Holding rights violators accountable before a court of law will end impunity and deter would-be violators. This is seen as a sure way of maintaining peace and security within and between states. The 2005 World Summit Outcome Document has added yet another layer of responsibility for states to protect persons within their jurisdiction. When a state manifestly fails to protect, the responsibility cedes to members of the international community. This implies a collective responsibility of states to not only protect human rights, but also take appropriate measures to bring alleged offenders to account.
During the conflict in the Darfur region of Sudan, the international community had reasons to believe that Mr al-Bashir had committed crimes that fall under the jurisdiction of the ICC. The failure of the government of Sudan to try high profile suspects such as al-Bashir, prompted the UNSC to pass a resolution referring the situation in Darfur to the ICC. The accused is presumed innocent until proved otherwise by the court. Those who call for the arrest of the Sudanese president argue that if he were confident of his innocence, he would have appeared before the ICC to clear his name.
Inconsistency within the ranks of the “anti-ICC camp” makes their case even weaker. Uganda’s President Yoweri Museveni, although an acrid critic of the ICC, had agreed in January (albeit reluctantly) to have a senior commander of the Lord's Resistance Army (LRA), Dominic Ongwen, transferred to the court. It is clear that African “leaders” are only interested in protecting their own from international criminal justice. They have no qualms about sending their opponents to the ICC despite the loud noises they make against the court.
The man and the charges
Omar al-Bashir, a military dictator, is among the most controversial political figures in Africa. What makes him stand out further is that he is the first sitting head of state to be indicted by the ICC. This view is just one of the multifaceted and rough edges of the accused. Mr al- Bashir is alleged to have committed, genocide, war crimes and crimes against humanity in the Darfur region of Sudan against dark skinned Africans (who are non-Arabs). Today, among the ranks of his army of offline and online defenders are many dark skinned Africans who are non-Arabs! One will be forgiven for seeing these people as completely mad or as not well informed individuals, but this conclusion will leave many questions unanswered and raise even more. Why are so many people in Africa throwing their weight behind a man who is wanted for the most heinous international crimes? Are they united in their support of Mr al-Bashir by their common disdain for the ICC? Or are they really convinced that the accused is innocent and does not need to appear before the court to clear his name? Many questions come to mind as one ponders over this thorny and sometimes impassioned yet delicate subject.
Because crimes within the jurisdiction of the ICC are not subject to any statute of limitation, the indictment by the court means a lifetime of worry for Mr. al- Bashir.
His supporters
Arguments to have some Western leaders namely former US president George W Bush Jr. and former British PM Tony Blair charged with international crimes for their roles in the invasion of Afghanistan but more crucially for the controversial US-led invasion of Iraq, which then-UN Secretary General Kofi Anan said was illegal under international law, are often advanced by al-Bashir supporters. This argument seems to be the key point raised by defenders of Mr al-Bashir each time one mentions the impending warrant of arrest issued by the ICC against him. For one to argue that the ICC should do NOTHING at all because it has done nothing in pursuing suspected war criminals in the US, Europe and Israel, is a weak argument. In spite of the slow movement of the arms of international criminal justice, one must not dismiss the need to start somewhere. Asking the ICC to drop charges against the Sudanese president until such time when it issues warrants of arrest for other politicians in other parts of the world may amount to saying that the court should wait until such time when it can issue arrest warrants for any other individual or individuals who may be suspected of committing crimes that fall within the jurisdiction of the court. This view is, at best, disingenuous.
Others are strongly of the view that the African Union (AU) and individual African countries can handle criminal justice and deal with any violations that may occur on the continent without “interference” from the ICC. This view lacks any iota of merit. The African Court on Human and Peoples’ Rights has no jurisdiction to try African leaders and their top lieutenants for so long as they are in office.
Immunity/Impunity
Faced with leaders, at least some of them including Bashir, who want to die in office, it is hard to see when and how such people could be held to account for any allegations levied against them. Immunity at the level of the AU and the lack of legal and political accountability in many African countries leave any victims of human rights violations, by political leaders, with no real chances of ever getting legal redress. It is hard to imagine parliament in an African country impeaching a president or prime minister and then putting them on trial for any offences – including international crimes. Given the culture of immunity/ impunity on the continent, the international criminal justice system is forced to act against those for whom it has enough evidence to indict. Ending impunity is crucial to building sustainable peace, and in attracting foreign direct investment, and ensuring prosperity anywhere in the world. This need is particularly relevant in Africa – the poorest continent in the world.
The verdict of history
Both sides of the divide seem to agree on the need to end impunity and deliver justice to victims of international crimes. The intractable difference is in the methodology (where, when and how to proceed) to achieve the shared goal of delivering justice and ending impunity in Africa. The AU and its supporters will continue to lose the argument until such time when they come up with a credible and viable alternative to the current international criminal justice system. There is no alternative for now. Until and unless Africa has a credible criminal justice system that can end impunity and bring leaders to account, the need for the ICC to intervene will always be there. While it is easy for those who are not victims of international crimes to dismiss the work of the ICC as “neocolonial” witch-hunt, victims of untold violence, brutality and mass murder do welcome justice irrespective of who or where that justice is coming from.
States that sign and ratify the Rome Statute – the treaty that established the ICC – are under international obligation to recognize and respect the jurisdiction of the court as well as cooperate in the enforcement of arrest warrants issued by the court.
The international human rights regime has narrowed down the scope of state sovereignty which had hitherto given heads of state absolute immunity irrespective of the gravity of their alleged crimes. The argument that a sitting president should not be arrested leaves festering wounds in hearts and minds of victims as the “sitting president” will cling on to office for life for his protection. This is an insult to the memories of the victims.
The verdict of history will vindicate those who call for President Omar al- Bashir to be arrested and brought before the ICC.
Note: For more on this, and the trigger mechanisms for ICC jurisdiction, read the online version of a similar article I wrote on The Standard newspaper in 2014, “Meet me in Addis Ababa: African politicians and the ICC ”.