The International Criminal Court (ICC) has indicted Sudanese President Omar al-Bashir on every crime under its mandate: war crimes, crimes against humanity and genocide. Such charges should have left Sudan’s leader marginalized and vulnerable to arrest. Yet Bashir has not only evaded arrest, he’s also been able to travel the globe and rub shoulders with world leaders. Last year, he visited South Africa, a prominent supporter of the ICC, for an African Union summit, and has forged a new relationship with Riyadh, enjoying a prominent place in the Saudi-led coalition in Yemen.
Bashir’s recent travels suggest that this rehabilitation has accelerated in ominous ways. Earlier this month, Bashir traveled to Uganda, an ICC member state with a treaty obligation to arrest him. Bashir feted his Ugandan counterpart at President Yoweri Museveni’s fourth swearing-in, where Museveni introduced Bashir and described the ICC as “a bunch of useless people.” Recent reports also suggest that the European Union plans to partner with Bashir to stem migrant flows from north Africa. To top things off, the Sudanese president has applied for a visa to attend the 2016 United Nations General Assembly. What remains of the diplomatic sanction attached to an ICC indictment?
Bashir in Uganda — diplomatic reconciliation over international justice
Bashir’s Uganda visit attracted significant controversy. The American, Canadian and European Union delegations walked out of Museveni’s ceremony over his remarks. A U.S. State Department spokesman said that Museveni’s comments amounted to “mocking the victims of genocide.” Human rights groups and justice advocates demanded that Uganda detain Bashir and surrender him to the ICC. Critics suggested that Bashir’s presence in an ICC member state once again illustrated the feeble power of the court. One local group filed a motion with Uganda’s High Court in an attempt to sue the government for reneging on its domestic obligations to arrest Bashir and to request an injunction preventing the government from inviting the Sudanese president again.
In fact, Bashir’s presence in Uganda had little to do with defying the ICC. Rather, his visit should be seen within the context of thawing relations between Khartoum and Kampala. Sudan and Uganda have been fierce regional rivals for the better part of two decades. Bashir and Museveni have sponsored each other’s adversaries through an intricate web of proxy warfare. Bashir has long been the sponsor of the Lord’s Resistance Army (LRA), providing it with refuge, arming and supporting the notorious rebel group against the government of Uganda. In turn, Museveni fostered close relations with the Sudanese People’s Liberation Army that fought Sudanese forces until — and, unfortunately, also since — South Sudan achieved independence from Sudan in 2011. Historically, Museveni and Bashir have seen their relationship more as an eye for an eye rather than eye to eye. It was this mutual disdain and enmity that resulted in Bashir skipping Museveni’s previous swearing-in ceremony in 2011. At the time, however, it was generally explained by insisting that Bashir had been successfully marginalized by the ICC warrants against him.
In recent months, however, the Kampala-Khartoum relationship has warmed. In an effort to reconcile differences and normalize relations, Museveni made a historic visit to Khartoum last year. In turn, Museveni extended an invitation to his swearing-in earlier this month — but unlike in 2011, this time he meant it.
This development is significant for African regional politics. But what does it tell us about the ICC? Both critics and proponents of the ICC ascribe more salience and power to the institution than it actually has. Bashir didn’t skip Museveni’s 2011 ceremony because of the ICC, but because the two leaders despised each other. And the reason for his attendance this month was not due to the ICC no longer being relevant, but because Uganda and Sudan are attempting to patch up their differences. Museveni’s vitriolic diatribe against the ICC may have flattered Bashir and offended his Western guests, but should come as no great surprise. Museveni’s schizophrenic attitude to the ICC is nothing new; he has cooperated with the ICC on the trial of child soldier-turned-LRA commander Dominic Ongwen, while simultaneously lambasting the court as a neocolonial institution out to demonize Africans and protect Western interests.
Europe partners with Bashir — choosing restricting migrant flows over stemming atrocities
Far more surprising, and potentially troubling, are reports of the European Union signaling that it would work with the very government its members believe is responsible for untold human suffering in Darfur. Just a day after Museveni’s swearing-in, Der Spiegel revealed that the European Union was partnering with Bashir to stem migrant flows from northern Africa. According to its report, “Europe wants to send cameras, scanners and servers for registering refugees to the Sudanese regime in addition to training their border police and assisting with the construction of two camps with detention rooms for migrants.” Sudanese officials have apparently told their German counterparts that migrants who are put into the camps will stay there indefinitely, insisting that “[t]he goal is that the refugees won’t leave the new camps.”
The idea of E.U.-sponsored camps in Sudan is particularly disquieting given widespread allegations of atrocities committed by Sudanese forces in internally displaced persons camps in Darfur, where living conditions have led some to argue that it amounts to “genocide by attrition.” Unsurprisingly, internal European Commission documents state that “under no circumstances” could the European public learn about the E.U.’s coalition with Bashir to fight the refugee influx into Europe. Now the cat is out of the bag — and it appears that the E.U.’s zealous commitment to arresting migration has trumped its principled commitment to arresting war criminals.
An emboldened Bashir applies to visit New York and the United Nations
On the diplomatic front, these developments appear to have emboldened Bashir. The Sudanese president has applied to the United States for a visa in order to attend the U.N. General Assembly this coming September. In 2013, Bashir made a similar request, but it was ultimately denied when U.S. officials simply ignored it.
According to Sudanese Information Minister Ahmed Bilal, however, this time Secretary General Ban Ki-Moon has extended Bashir an invitation to attend. This would be particularly problematic given the U.N.’s own guidelines restricting diplomatic interactions with alleged war criminals. The veracity of Bilal’s claim remains unclear and it is difficult to imagine the United States allowing Bashir to visit. But his application illustrates an increasingly confident president.
Matching diplomacy with international justice
None of this is good news for the ICC. Its champions have long argued that the court’s targets will be isolated and marginalized. But seven years since Bashir was first indicted, the Sudanese president is increasingly rubbing shoulders with leaders around the world — including those who govern ICC member-states. The court has few-to-no effective remedies to counter Bashir. It can huff and puff. It can demand explanations from states. It can even ask the U.N. Security Council to huff and puff for it. But the institution fully recognizes that the current diplomatic landscape is tilting in Bashir’s favor — and not toward justice and accountability. Only a change in those diplomatic circumstances — and not the demands of justice — will land Bashir in The Hague.
A version of this article was first posted at the Monkey Cage blog, for the Washington Post.
Thanks for an excellent post Mark . Just few remarks with your permission :
First, the case of Bashir, is one of: UN referral one (SC resolution: 1593) In such, it does provide, greater momentum for the ICC, to impose sanctions through the SC, all, on Sudan, and other states not complying with the court and the arrest warrants issued by it. But , the ICC , hasn’t done almost nothing in this regard ( Sanctions imposed by the SC , under chapter VII to the UN charter ) .
Second : One should not forget , the turning point , was the escape of Bashir , from arrest in the AU summit in south Africa at the time . Bashir wouldn’t attend this summit , if immunity , hadn’t been guaranteed to him by South Africa authorities ( innocently apparently ) . If the ICC , would have monitored the whole process in South Africa , it wouldn’t happen , and Bashir could effectively , stay more marginalized in the world . This is because , South Africa , is not only state member to the Rome statute , but has clear western legal perception , in terms of international norms , and if such state , dares to violate it , easier applied for other states to take corrupt example .
Finally , many scholars in the international community , still preach , that , CIL ,is prevailing over the Rome statute , in terms of immunity granted to heads of states . The ICC , doesn’t do nothing almost in that arena , or other international arenas , all , for , introducing new and prevailing new CIL , that : no more immunity to heads of states , when it comes to : international crimes , treated by the ICC , or let alone , after issuance of arrest warrants .
I have just forgotten ( in my comment above ) to refer or to cite the high court of south africa ruling (gauteng division, pretoria) illustrating so , the immunity that had been guaranteed to Bashir , here I quote :
” The defence propounded was to the effect that the Cabinet had taken a decision to grant President Bashir immunity from arrest….”
And more :
” The assertions made by the Director General and Dr Lubisi formed the essence of the submissions made on behalf of the Respondents by Adv Mokhari SC. The primary basis of the argument being essentially that the promulgation of the notice by the 5th Respondent, which embodied the terms of the host agreement and which, in its terms, made provision for the immunity of heads of AU member states whilst engaged in AU business, provided the requisite reprieve to South Africa not to comply with its ICC obligations of arresting President Bashir during his attendance of the Summit. ”
End of quotation :
So , this case , constituting first UN referral , where head of a state , not member , had to be arrested . In such test case , The ICC had to focus or concentrate , all its resources on verifying or assuring arrest . Failure here , could be quite critical for future global perception of the court . But , it is never too late .
One may reach the ruling here ( section 5 and 22 ) :
Click to access 402.pdf
Thanks for the good analysis, Mark! It seems clear to me that the ICC can only properly do its job if it stops prosecuting sitting heads of state.
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