Reports suggest that Omar al-Bashir will visit Uganda on May 12th (Photo: The Guardian)

UPDATED: Sudanese President Omar al-Bashir will not be in Kampalafor Ugandan President Yoweri Museveni’s presidential swearing in. According to Sudan’s Foreign Ministry, a senior advisor to al-Bashir will be sent instead “due to precommitments” of the President (probably a precommitment to not being arrested!). A Ugandan government spokesperson has now said the invitation was given to Bashir in accordance with regional and diplomatic protocol: “President Bashir was invited as our neighbor. But I think it is up to him to decide whether to come or not. In any case, he is free to delegate [somebody else].” 

I have chosen to leave the post as is. Most of it remains pertinent; the post mostly considers the implications of Uganda’s invitation rather than the possibility of al-Bashir visiting Kampala. This is a small but important victory for rights groups which reacted sharply against al-Bashir’s possible visit. Nevertheless, questions still remain as to why al-Bashir was invited by Museveni and about the wider implications of African-ICC relations. 

It has become a regular occasion that the human rights community gasps at the news that Sudanese President, Omar al-Bashir, gets invited to yet another country and yet another state party of the International Criminal Court. It has become an uncomfortable ritual that defies international criminal justice.

The international community’s outrage will be a little bit louder and their exasperation a bit deeper if, as reports suggest, al-Bashir visits Uganda, a key supporter of the ICC.

It has been a tough week for international criminal justice. Whichever way the cookie crumbles, the assassination of Osama bin Laden wasn’t a good thing for international criminal law. Egypt, in a rather schizophrenic moment, released two statements in one day: the first saying they would join the ICC and another defying the Court by saying it would not arrest President al-Bashir if he visited. This week, al-Bashir visited yet another ICC member-state, Djibouti for the swearing in of President Ismail Omar Guelleh (al-Bashir has also visited two other member-states: Kenya and Chad).

Now Yoweri Museveni, the President of Uganda, has invited al-Bashir to attend his Presidential swearing in set to take place May 12th in Kampala. According to reports, al-Bashir has not confirmed whether he will attend.

Ugandan President Yoweri Museveni has been a key supporter of the ICC (Photo: AFP)

This will come as a surprise, if not a shock, to many observers. First, Uganda has been one of the most enthusiastic supporters of the ICC. It referred the conflict in Northern Uganda between the government and the Lord’s Resistance Army to the Court in 2003. Last summer, Uganda hosted the Kampala Review Conference on the ICC. The ICC even has an office in Kampala.

Second, Uganda has not been in line with other African states in refusing to cooperate with the ICC on detaining al-Bashir. A significant group of African Union (AU) member-states have expressed their vehement opposition to the ICC’s intervention in Darfur and its arrest warrant against al-Bashir.  Uganda has previously said that it would arrest al-Bashir should he visit. On more than one occasion, al-Bashir has decided against visiting Uganda for conferences, presumably for fear of being detained. The relationship between Kampala and Khartoum has often been strained with allegations that both have supported each other’s enemies.

Given the above, why would Museveni invite al-Bashir? It is unclear what his intentions are but it is possible that his decision is in response to the ICC sending a team to monitor the government’s responses to ongoing protests in the country. According to one report, an anonymous source recently said:

“They [the ICC monitors] are here. They are watching this. Don’t forget that the ICC has never closed the northern Uganda file. And now this is happening; Museveni is still being watched.”

While this is purely conjecture, it is possible that if Museveni’s government is uneasy with increased monitoring by ICC officials, he may want to demonstrate a degree of defiance by issuing an invitation for al-Bashir to visit.

Who will win the tug-of-war regarding the arrest of al-Bashir?

Will al-Bashir attend? It’s tough to say. Visiting would be the biggest slap in the face of international criminal justice to date. But it would also be his riskiest travel since the ICC issued its first arrest warrant against him in March 2009.

It is possible, of course, that he does visit and Uganda arrests him. Never say never, but it seems highly unlikely that this would ever happen. The arrest of al-Bashir is far too sensitive an issue. It seems far more likely that President Museveni would rather quietly tell al-Bashir not to visit.

What makes the potential visit of al-Bashir to Uganda all the more troubling is the political importance of Uganda to the Court. The relationship between the ICC and Uganda has been essential to the Courts’ perception and its potential for success in Africa where, to date, all of its official investigations and arrest warrants have been initiated and issued.

All of al-Bashir’s visits to ICC member-states, and especially his potential visit to Uganda, suggest the emergence of a troubling precedent. Numerous African member-states continue to be (mostly) happy to support the Court in some cases, such as Libya, but not in the case of al-Bashir. This sets something of a “pick-and-choose” exemplar where the obligations of states to the Court are only upheld on some occasions. This is quite obviously antithetical to those very obligations which states affirm when they sign and ratify the ICC’s Rome Statute. It also flies in the face of justice being blind and that it should apply universally, regardless of politics.

There is an obvious tug-of-war taking place between the ICC and certain African states on the arrest warrant of al-Bashir. If al-Bashir visits Uganda, it will be clear that the ICC is losing the fight.