President Omar Al-Bashir of Sudan has been in the news a lot since the 4th of March 2009 when the International Criminal Court (ICC) issued a warrant for his arrest for war crimes and crimes against humanity perpetrated against the people of Darfur.
Since then Al-Bashir has spent significant time and energy on the consolidation of friendships and the careful marking of foes. Beyond his regular bluster and apparent disregard for the authority of the ICC, it appears that he is more concerned about the warrant than he would like to admit. His reduced travel schedule in recent months is evidence of this.
Despite personal invitations from the leaders of Venezuela (to attend the Africa-South America Summit), Uganda (to attend the AU summit on refugees) and Nigeria (to attend the recent AU Peace and Security Council meeting) Al-Bashir has yet to set foot in a single ICC State Party since the warrant was issued. This is not the reaction one would expect from a head of state confident of his safe passage and legal protection. Perhaps the noose of international criminal justice is tightening around the powerful president.
Al-Bashir's activities in the last few months have been characterised by subtle (and sometimes more brazen) efforts to garner support for his cause. At this time it is clear that he has amassed some important political cover, most notably from China (a permanent member of the UN Security Council), the Arab League and the African Union (AU), which have been his most vocal backers.
Al-Bashir's supporters believe that the move by the ICC to seek to arrest a sitting African head of state is another example of double standards by the West in international politics and law. They question why the Court is only ‘targeting' Africa whilst ignoring other heads of state - mainly western or allies thereof - who are believed to be responsible for major human rights violations and war crimes. Some cite Iraq and Gaza as examples.
Many of these criticisms can be convincingly countered. However, recent resistance to the Court in Africa highlights how international criminal justice operates within the arena of international real politik. In this uneven, and constantly changing environment, we need to remind ourselves why justice matters: because ending impunity for grave international crimes is essential for durable peace; because victims of these horrendous crimes deserve justice, reparations and reconciliation. This thinking drove the development of the ICC in the 1990s. It remains as relevant today. Political etiquette, anachronistic immunity laws, and resistance to the rule of law should not be allowed to win out.
The ICC was created (with significant support from African states) to make life more difficult for alleged (and convicted) perpetrators of grave international crimes. It is a court of last resort designed to support national efforts to achieve justice. It ensures accountability for international crimes when national justice mechanisms are unwilling or unable to do so. And importantly, it is not constrained by the same political and legal chains when attempting to prosecute senior government officials, including heads of state.
The arrest warrant for Al-Bashir is an important test case for the Court, and for the international criminal justice in general. As states parties to the ICC Statute, Uganda, and Nigeria have treaty obligations to cooperate with the Court, including in the execution of the arrest warrant against Al-Bashir. No amount of political wrangling and churning out of collective declarations against the work of the ICC can change the fact that the majority of African states (30 to date) have an obligation to execute the ICC warrant, even against a sitting head of state.
Al-Bashir seems to understand that many African countries take these legal obligations seriously and that they might potentially trump political promises of safe passage from his African counterparts. This reality is making life more difficult for Al-Bashir and is severely constraining his ability to carry out his stately duties. Slowly, but surely, he is starting to feel the burden that comes with being wanted for international crimes. Like other heads of state before him, these developments could lead him one step closer to the dock to face justice for the grave crimes he is alleged to have committed. Justice for heads of state is no longer just a legal theory. Just ask the likes of Taylor, Pinochet and Milosevic.
Written by: Nompumelelo Sibalukhulu, Junior Researcher, International Crime in Africa Programme, ISS Pretoria Office