There has been some debate about whether Sudanese President, Omar al-Bashir, charged by the International Criminal Court (ICC) with war crimes, crimes against humanity and, more recently, genocide, would defy the warrant against him and visit a member-state of the ICC. Yesterday came the answer. Just days after the ICC’s Prosecutor and the President of Chad met, al-Bashir paid an official visit to Chad, a member-state of the ICC, which has the legal obligation under the ICC’s Rome Statute to arrest al-Bashir. They decided not to.
The question on everyone’s mind is why on earth would al-Bashir risk arrest by visiting a member-state? To date the Sudanese President has made a point of only visiting non-signatories of the Rome Statute.
Of course, Chad will have given Sudan as many assurances as it surely needed before the official visit. If there was any doubt, al-Bashir was even presented with a key to the Chadian capital, N’djamena.
It should also be noted that relations between Chad and Sudan are key to peace in Darfur. While the conflict in Darfur was initially painted as a black-and-white, Arab-African conflict, the true narrative is far more complex with dynamics played out on multiple levels. This includes the tenuous relationship between Chad and Sudan. The two neighbouring states have waged proxy wars in Darfur. It is increasingly apparent that any solutions to the conflict hoping to establish peace in Darfur will require a holistic approach and a wider understanding of all of the the underlying dynamics and causes of conflict, including Chad-Sudan relations.
Back to al-Bashir’s visit, one of the primary arguments used by advocates of al-Bashir’s indictment, and issuing arrest warrants for state officials in general, has been that the warrants can act as a tool of isolation. Domestically and internationally, al-Bashir would be isolated through the shame and pressures of an arrest warrant. No one, the reasoning goes, wants to rub shoulders with an alleged international fugitive. As a result, the leader’s power can be undermined and challenged by internal actors who will want to establish peace, the leader will be thrown out of power and hopefully sent to the Court. Domestically, this relies on a tenuous assumption that any domestic opposition that overtakes the leader will necessarily want peace. But that’s another matter.
In the immediate wake of the indictment, there were,, at best mixed indications of al-Bashir’s marginalization. Some powerful domestic voices, notably Hassan al-Turabi, claimed that al-Bashir should surrender to the ICC. Domestic opposition parties, to the surprise of some observers, rallied in support of the President and rejected the ICC’s jurisdiction, calling the Court a tool of the imperial West. Internationally, members of the African Union and the Arab League publicly declared their support for al-Bashir and worked to lobby the United Nations to defer the indictment. The African Union recently reaffirmed their view that the indictment is untimely and counterproductive.
In the meantime, al-Bashir visited a number of states, none of which were members of the ICC. Indeed, it appeared that international marginalization was working. In the past year, al-Bashir had missed some seven meetings due to be invited or uninvited.
Al-Bashir no doubt wants to fight not only against the ICC’s indictment, but international isolation. His visit to Chad will serve its political purposes. It is an act of defiance that the ICC’s detractors will no doubt trump up. There’s little doubt that realist scholars will use this event to suggest that states only really abide by international law when it’s in their interests. Many will wonder how seriously the Court can be taken when its member states refuse to comply by its Statute. This weight of this line of reasoning will, however, depend entirely on whether Chad’s act of defiance sets a precedence or is an isolated act.
My view is that this will be an isolated event. There are no doubt troubled waters between many African states and the International Criminal Court. Further, al-Bashir’s visit to Chad is no doubt a challenge to the Court, whether it is symptomatic of its relations with African states or not. It also poses interesting legal questions. In particular, what are the implications of being in breach of the Rome Statute? For now, the ICC has remained silent on the issue.
However, the cohesiveness of AU position should not be over-estimated. Indeed, it’s worthwhile remembering that the African Union has never come out and said that al-Bashir is innocent, but asserts that the warrant was issued at the wrong time. Sudan is at a critical juncture, with fragile Darfur peace negotiations and the critical implementation of the Comprehensive Peace Agreement between North and South Sudan.
The position of the AU may not be quite as uniform as official communiqués or declarations would suggest. Amongst AU member states there appears to be significant disagreement. A high-level panel headed by Thabo Mbeki came out with a position that implicitly supported the criminal action against al-Bashir. Further, some officials at the ICC have suggested that a number of African and Arab states agreed that al-Bashir should face justice but that they could not declare so publicly or officially. Some are more open with their support. South African President Jacob Zuma recently declared that should al-Bashir visit, he would be arrested. This suggests the existence of competing pressures to denounce the indictment rather than declaring support for an independent institution pursuing justice.
Of course, this is just one opinion. It is entirely possible that the fall-out from al-Bashir’s visit could be much more significant and detrimental. It is remarkable that just weeks ago, the New York Times published a piece titled ‘Wanted, Sudan’s President Can’t Escape Isolation’, arguing that isolation of al-Bashir has been increasingly effective. That within weeks of its publication, al-Bashir would visit a member-state of the ICC is indicative of the unpredictable nature of international criminal justice playing out in the field of international relations.
Originally published at http://kerstenskolumn.wordpress.com/2010/07/22/al-bashir-defies-warrant-visits-chad-so-what/