The handling of the ICC arrest warrant against the Sudanese President Omar al-Bashir continues to create major problems for the African Union. The planned attendance by Al-Bashir of the 19th AU Summit in Malawi coming July and the threat of the Malawi government to arrest him if he did attend has forced the African Union to move the summit to its headquarters in the Ethiopian capital of Addis Ababa.
The International Criminal Court (ICC) issued an arrest warrant against the Sudanese president in 2009 on charges of genocide, crimes against humanity and war crimes committed in Darfur.
During an earlier visit in 2011 for a heads of state meeting of the Common Market for Eastern and Southern Africa (COMESA) Malawi refused to arrest al-Bashir. The country failed to carry out the arrest despite its obligation as one of the signatories of the Rome Statute creating the ICC to arrest al-Bashir if he would set foot on their soil.
In total 33 African countries are signatories to the Rome Statute. Several of them, like Chad, Djibouti and Kenya, have failed to arrest al-Bashir when he was in their territory in the recent past. These countries have been referred to the UN Security Council for refusing to arrest Al-Bashir. Also the ICC Prosecutor has called for aid cuts to any country that allows al-Bashir in.
Following al-Bashir’s earlier visit Malawi reportedly suffered a substantial loss in western aid and this time around decided to pull out of hosting the summit if the African Union insisted on the attendance of the Sudanese president.
Although a few African countries like Botswana and Zambia are in support of Malawi and have said in the past that they would comply with the ICC arrest warrant if Al-Bashir would visit their countries, the majority of African leaders is still unwilling to arrest him.
African heads of state voted in 2009 not to cooperate with the ICC indictments against al-Bashir claiming that it would hamper attempts to end the various conflicts in Sudan and until now the AU has unsuccessfully lobbied for the al-Bashir arrest warrant to be deferred. They also criticize the ICC for unfairly targeting African countries as so far all ICC cases deal exclusively with Africa.
The critics of the African Union policy see the prosecution of the Sudanese president as a means to bring justice to the large numbers of people who have endured human rights abuses and would also make an important contribution to fight against impunity on the continent. Many civil society organizations across Africa have called on their governments to support the ICC.
The latest move of the African Union can be seen as diplomatic victory for Sudan and makes it clear that the AU policy with regard to the cooperation with the ICC hasn’t changed. The ICC arrest warrant against al-Bashir, however, has led to further polarization of African opinion on the matter and the decision of Malawi to withdraw from hosting the summit has increased tensions among the AU member states. With future AU summits planned in, among others, South Africa, which in 2002 became the first African state to enact the Rome Statute's provisions into its domestic law, it remains to be seen whether the continuing protection of the Sudanese president by the African Union can be sustained.
A selection of relevant publications from the Peace Palace Library collection
- Tehindrazanarivelo, D.L., "The African Union Principle on the Fight against Impunity and the Arrest Warrants for Omas Hassan El-Bashir", in M. Kohen [et al.] (eds.), Perspectives of International Law in the 21st Century: Liber Amicorum Professor Christian Dominice in Honour of His 80th Birthday, Leiden [etc.], Nijhoff, 2012, pp. 397-442.