AU And The Al-Bashir Challenge

President Al-Bashir’s atrocities in Sudan’s Darfur region churn the stomach. African leaders who are shielding him from arrest do themselves no good

In the past week, Omar al-Bashir, Sudan’s President for over 26 years, was forced to beat a hasty retreat from South Africa where he had gone to participate in the Summit of the Heads of State and Government of the African Union (AU). This followed the order of the South African High Court asking the government to detain him pending the determination of an application seeking his transfer to the International Criminal Court (ICC) in The Hague, where he stands accused of multiple counts of war crimes, crimes against humanity and genocide in relation to the situation in Darfur, western Sudan.

The circumstances of President Bashir’s escape from South Africa remain unclear. What is clear is that he travelled at the invitation of the government of South Africa that had issued an instrument specifically granting him immunity from arrest while he was in the country. In 2014, the government of David Cameron issued a similar instrument to protect former Israeli foreign Minister, Tzipi Livni, during her trip to the United Kingdom. While many people, including within South Africa, have condemned the action of both Al-Bashir and the government that appeared prepared to flout its own judicial institutions in his favour, opinion remains deeply divided within the continent on how to resolve what has become a serious problem that will not likely go away.

To be sure, the allegations against President Al-Bashir concern the most serious crimes known to humanity. The fact that these charges are made against a sitting and long standing president underscores the need to treat them with utmost seriousness. Yet, the attitude of both President Al-Bashir and the AU to these charges has been anything but serious. For sure, there is genuine disagreement in international law as to whether or not a country can arrest a sitting head of state, especially one with whom it enjoys diplomatic and friendly relations. But it is equally agreed that there can be no immunity against crimes as serious as those with which President Al-Bashir is charged.

To its credit, the AU and its institutions have invested considerable diplomatic capital in the situation in Darfur. In 2004, the African Commission on Human and Peoples’ Rights had similarly found that crimes against humanity had been committed there and equally made far reaching recommendations. In 2008, it established the AU High Level Implementation Panel (AUHIP) led by former South African President, Thabo Mbeki, to investigate the situation in Darfur. But President Al-Bashir has failed to cooperate with or respect the AUHIP. Even worse, he has sought to diminish the AU by his intransigence.

To prevent further embarrassment of African leaders who kill their own people, the AU has amended the Protocol of the African Court on Human and Peoples rights based in Arusha, Tanzania. If the protocol is ratified by just 15 member states, the court will exercise criminal jurisdiction in respect of the kinds of crimes with which President Al-Bashir is charged. But the African leaders who are opposed to the ICC have refused to ratify the protocol. Even with respect to human rights violations only seven states (Burkina Faso, Cote D’ivoire, Ghana, Mali, Tanzania, Malawi and Rwanda) have made a declaration accepting the court’s jurisdiction.

The objections to the Al-Bashir arrest warrant, weighty as they may be, therefore, genuinely miss the point: The institution of the presidency anywhere cannot be reduced to the squalid role of shielding from accountability persons charged with the greatest crimes known to humanity. The AU has adopted a decision requiring African countries to decline co-operation to the ICC in enforcing the warrant against President Al-Bashir. This is wrong. The hundreds of thousands of people both killed and displaced in Darfur also deserve justice and protection from the AU.

The African leaders who are shielding Al-Bashir from accountability do themselves and the continent no good. It is even more disheartening that they do not believe that there should be sanctions for such crimes. As long as such impunity reigns supreme in the continent, victims of gross human rights abuse and genocidal acts traceable to African leaders will continue to cry to the ICC for redress since the criminal justice system in most of the countries cannot try such VIPs.

There is genuine disagreement in international law as to whether or not a country can arrest a sitting head of state, especially one with whom it enjoys diplomatic and friendly relations. But it is equally agreed that there can be no immunity against crimes as serious as those with which President Al-Bashir is charged