The International Criminal Court and the Bashir problem

International Justice Day is celebrated on 17 July, the anniversary of the adoption of the Rome Statute for the International Criminal Court (ICC). The day is meant to serve as a reminder of the importance of bringing perpetrators of war crimes, crimes against humanity, and genocide to justice.

Back in 2012, a UN Human Rights Office representative stated “The ICC… sends a strong message to perpetrators of human rights violations around the globe that you can run, but you cannot hide. You will be found, and you will be held to account for what you have done.” Unfortunately this has not been the case for Sudan’s President Omar al-Bashir who has been wanted by the ICC since 2009 but has so far managed to evade justice.

Bashir was charged with international crimes in 2009 including large-scale extermination, murder, rape, torture, forcible transfer and pillaging of civilians after the United Nations Security Council referred the crisis in Darfur to the court. Yet to date, Bashir has not been arrested and the Sudanese government continues attacking Darfur with the latest offensive resulting in the forced displacement of over 138,000 people in 2016 alone. The government also continues to target its own civilians in Southern Kordofan and Blue Nile states through regular aerial bombardment and the destruction of civilian structures.

Although the ICC is responsible for accountability, it relies on states to enforce warrants and surrender suspects to the court. However in the last seven years, Bashir has been able to travel freely even to states obliged to assist the court. This May, he attended the swearing in ceremony of Ugandan President Museveni who, in defiance of a 2011 judgment of the ICC’s Pre-Trial Chamber I to report, said:- “[The ICC] are a bunch of useless people who should not be taken serious [sic]. We have no business with the ICC and so we welcome our brother from Sudan President al-Bashir.” A somewhat erroneous and ironic position given that the case against Dominic Ongwen for alleged crimes committed in Northern Uganda between 2003 and 2004 is ongoing. Just a few days earlier, Djibouti had also failed to cooperate with the court by hosting Bashir at the Djiboutian leader’s inauguration. Earlier this week, on 12 July, the ICC referred Uganda and Djibouti to the UN Security Council for its failure to arrest and stated that it would, alongside the Assembly of States Parties – “take the measures they deem necessary regarding this matter.” Uganda’s response has been that it “will not lose sleep” over this.

The weight and consideration given to political factors at the cost of justice by states when it comes to the ICC is clearly visible. Although the Djiboutian and Ugandan Presidents inauguration were within days of each other, the reaction from the international community was completely different. While Bashir’s visit to Uganda led to a walk out by the Canadian, US and European Union delegations with the US stating “[w]e believe that walking out in protest is an appropriate reaction to a head of state mocking efforts to ensure accountability for victims of genocide, war crimes and crimes against humanity, particularly when his country has committed to accountability as a state,” the US did not walk out in Djibouti possibly due to the fact Djibouti serves as a hub for US operation missions in Africa and the Middle East.

Regardless of the motivations of all parties, the result has been the same. Not only has it bolstered Bashir’s confidence that he will never be held accountable for his crimes, it has also had an increasingly negative impact on the ICC itself with a number of African states contemplating withdrawal from the ICC Even Rwanda – a country that not only knows first hand the devastating impact of genocide but also understands the need for accountability, is happy to welcome him. This week, Bashir is in Kigali for the African Union Summit where Rwandan President Kagame has said “President al-Bashir is welcomed in Kigali at any time… We will not respond to the ICC calls to arrest him. We will not take any action of such type against him.” Bashir has also reportedly applied for a visa to the United States in order to attend the UN General Assembly this September. According to Sudan’s Information Minister “[i]t is our right to actually attend the activities of the UN and America should not at all speak about arresting the president because they are not a member [of the ICC], and even if they are member, the president is not coming for America; he’s coming for the UN.”

Conclusion

The impunity Bashir continues to enjoy can be changed but “only if the Security Council and countries like the US and other important actors undertake a sustained effort to prioritise [Bashir’s] arrest and make it a central part of their diplomatic efforts.” But each time states fail to take action, the authority of the ICC is weakened and more importantly, the pursuit of justice and accountability hindered. So on this international justice day, it’s worth reminding ourselves of the real consequences of this political game playing: those who have been victims of these crimes, considered by all as the “worst of the worst,” continue to see the justice they deserve elude them once again.

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