Ousted in Sudan, Omar al-Bashir is still ‘at large’ at the ICC

Unclear if coup will lead to Bashir finally facing justice in The Hague

Sudanese president Omar al-Bashir giving a speech in Nyala, the capital of South Darfur province, in September 2017. Photograph: Ashraf Shazly/AFP/Getty Images

Sudanese president Omar al-Bashir giving a speech in Nyala, the capital of South Darfur province, in September 2017. Photograph: Ashraf Shazly/AFP/Getty Images

 

For the past 11 years, since he was first indicted by the International Criminal Court (ICC), Sudan’s president Omar al-Bashir has had the dubious international distinction of being the one and only sitting head of state wanted for crimes against humanity, genocide, and war crimes.

Although he was ousted on Thursday in a military coup, his ICC status remains the same: “At Large”.

The high profile of the allegations against him, and his flaunting of his apparent impunity despite the long reach of the ICC when its member states are onside, has underscored two of the most glaring and structurally damaging flaws in the implementation of international justice.

First, athough Bashir’s alleged involvement in more than 300,000 deaths in Darfur and neighbouring states was originally referred to the ICC by the UN Security Council in 2009, the council has “consistently failed to ensure his arrest”, according to the ultra-moderate Coalition for the ICC.

Second, Bashir has come to exemplify the defiance of many African countries who see the ICC as a post-colonial proxy dispensing “western” justice in less-developed parts of the world – an argument bolstered unfortunately by the inescapable fact that all of the court’s trials have been of Africans.

While the former is a structural problem going right back to the Rome Statute in 2002, which established the ICC and laid down the relationship between the court and the security council, the latter has been a “stick” wholly of the ICC’s own making – and Bashir has exploited it to the full.

Free and easy

Despite two international arrest warrants and an international travel ban, Bashir has made free-and-easy diplomatic visits to China, Egypt, Nigeria, Ethiopia, Kenya, Chad, Qatar, the United Arab Emirates, Saudi Arabia and South Africa in recent years – all of which failed to arrest him.

That indifference, combined with the collapse of the ICC case against another African sitting president, Kenya’s Uhuru Kenyata, has left the court in The Hague, which does not have any independent means of enforcing its own warrants, looking shockingly ineffectual.

Only in South Africa, where he attended the 25th African Union summit in 2015, was there a nominal outcry.

In the event, he was spirited to his private jet and flown out of the country in defiance of a high court order banning him from leaving while an application for his arrest was heard.

There’s no indication yet as to whether this coup will lead to Bashir appearing in the ICC dock. The view at ICC headquarters is that “humanity must have its day in court”. Whether that happens will depend on where, strategically, Sudan’s new rulers see its place in the family of African states.

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