Issuing warrant is one thing, arresting Bashir is another

It is a slap in the face for the African Union, although a bold step in the fight to end impunity. And it is an exciting breakthrough in universal jurisdiction.

The decision to issue a warrant for the arrest for Sudanese President Omar al-Bashir on charges of crimes against humanity and war crimes in the country’s Darfur region also lays down the principle that sitting heads of state do not enjoy immunity from prosecution by the International Criminal Court (ICC).

The decision shows further that African political pressure, in this particular case, does not carry any weight. Last year, the AU asked the UN Security Council, which had referred the Darfur question to ICC prosecutor Luis Moreno-Ocampo, to defer the al-Bashir prosecution for a year.

THE AU, MADE UP OF 53 COUNTRIES, warned that prosecuting the 65-year-old president and commander-in-chief of the Sudanese armed forces could jeopardise the peace process in the region.

The peace process has produced no ceasefire so far between the Sudanese government and Darfur rebels.

But the two sides have agreed on “confidence-building measures”, which could reduce the violence in Darfur, in which as many as 300,000 people have been killed and a further 2.7 million displaced since the rebellion began in 2003, according to UN estimates.

The rebellion began when mostly non-Arab tribes took up arms against Khartoum, demanding better representation and infrastructure for their region.

Sudan’s military and Arab militias, including the notorious Janjaweed, then went into a campaign of bombing villages, murdering, raping and displacing the Fur, Masalit and Zaghawa African communities.

Mr Moreno-Ocampo, who accused President al-Bashir of genocide, says the intention was to exterminate the three African groups. In 2005, the Security Council asked him to investigate the crimes.

In April 2007, following the investigations, the ICC issued warrants for the arrest of Mr Ahmed Haroun, currently the Sudanese state minister of humanitarian affairs, and a top Janjaweed leader, Mr Ali Kosheib, to face 51 counts of war crimes and crimes against humanity for their leading roles in a series of attacks on civilians in West Darfur in 2003 and 2004.

Sudan, however, refused to hand them over to the court.

When Mr Moreno-Ocampo also indicted President al-Bashir and asked the ICC to issue an arrest warrant, the AU said prosecution was not in the interests of the victims and justice.

Kenya backed the AU decision, with President Kibaki saying that the international community must help the government of Sudan to find an amicable solution to the Darfur crisis. He warned that any isolationist policy against the Sudanese government would be counter-productive.

The decision on Wednesday this week by The Hague-based ICC to issue an arrest warrant and formally charge President al-Bashir ignored the AU appeal. The three-judge panel did not take into account that its move could destroy a fragile peace process.

The ICC is said to be an independent organisation. But it can investigate or provide a legal opinion on cases passed on by the Security Council. But the decision to issue the warrant shows how selectively international law is being applied.

President George W. Bush who invaded and occupied Iraq committed what many legal experts deem the worst war crime since World War II. But the Security Council, which is dominated by the US, is unlikely ever to ask the ICC prosecutor to initiate proceedings against the now retired Bush.
ALL THE SAME, IT IS NOT CLEAR IF THE AU is right in its stand. Issuing an arrest warrant may harden President al-Bashir’s stance. It could also soften his position because, from now on, he is a wanted man — a fugitive from justice.

The Sudanese leader, however, has struck a defiant mood, telling the ICC judges that they can take their warrant of arrest and “immerse it in water and drink it”. Still, the stigma of being an international fugitive could take the wind out of his sails. His travels will certainly be severely restricted to avoid arrest.

However, issuing the warrant is one thing and arresting President Al-Bashir quite another. All the 108 countries — 30 of them African — that have ratified the Rome Statute that set up the ICC in July 2002, have the obligation to arrest him and hand him over to the court at The Hague. But who will bell the cat?