Arrest Bashir

For seven years now, Sudanese President Omar al-Bashir has literally gotten away with murder as he travels the globe rubbing shoulders with world leaders and snubbing his nose at the International Criminal Court (ICC).  

In 2009, the ICC issued an arrest warrant for the Sudanese leader for crimes against humanity, including the killing of 300,000 people and the displacement of 2.5 million more in Darfur. A year later, the court added the charge of genocide. Since then, Bashir has made more than 75 trips to nearly 30 countries, including to seven states that are members of the ICC and are therefore legally obligated to arrest him.

Later this month, Bashir is expected to travel to the Rwandan capital of Kigali to attend an African Union summit on human rights. Rwandan President Paul Kagame has said he will welcome the Sudanese leader with open arms, which is hypocritical at best. In 1994, Kagame led a military offensive in Rwanda that stopped the genocidal slaughter of hundreds of thousands. Since then, he has gone on to try thousands of perpetrators and to pass strict laws against genocide deniers.

Bashir enjoys such brazen impunity for a few reasons. He and a few other African heads of state argue that the ICC is pro-Western and anti-African. Kagame has himself labeled the court “a new form of colonialism, slavery and imperialism,” and Ugandan president Yoweri Museveni declared last May that the “ICC is none of our business” even though it was very much his business 12 years earlier when he referred the first case to the ICC. “I supported the ICC once,” Museveni said with Bashir at his side, “but now they are just a bunch of useless people.”

Until this January, all the ICC’s formal investigations have focused on atrocities committed in Africa, so it is easy to see why the rhetoric of powerful African leaders has gained traction in the press. But it is also important to listen to the voices of African survivors of mass violence, who tell a very different story.

Researchers at the Human Rights Center at the University of California, Berkeley School of Law recently interviewed 622 survivors of atrocities in four African countries who have been subject to ICC investigations. They emphatically agreed that the court was one of the few institutions that might offer some hope for balancing the radical imbalance of power that benefits sitting and former heads of state implicated in atrocities. Most survivors said their government officials would meddle in local trials of high-level suspects charged with serious international crimes such as crimes against humanity and genocide. “The ICC doesn’t get into politics,” a Kenyan respondent said. “It is more equitable, fairer. That is why I prefer it.”

And so, from Kenya to Mali to Nigeria to South Africa, dedicated activists, operating out of makeshift offices and with little funding, have successfully petitioned national courts to issue arrest warrants for the Sudanese leader should he ever step into their territory. Yet their governments have largely stood in solidarity with Bashir, flouting their legal obligation to the ICC.

Consider Bashir’s trip to South Africa a year ago to attend an African Union summit. Upon learning that the Sudanese leader had arrived in Pretoria, the Southern Africa Litigation Center petitioned the North Gauteng High Court to arrest the Sudanese leader. But when the South African government caught wind of the petition, it spirited Bashir out of a meeting and onto his presidential jet back to Khartoum. South Africa’s Supreme Court of Appeal later called the government’s behavior “disgraceful” and said that it had acted unlawfully by failing to arrest Bashir and letting him leave the country.

South Africa isn’t the only impediment. With no police force of its own, the ICC must rely on states to enforce arrest warrants. And like South Africa, Uganda and Kenya have blatantly disregarded their legal obligations to advance their own political and economic interests. To make matters worse, states that have not joined the ICC, such as Rwanda and the United States, are under no obligation to enforce the court’s warrants.

To solve this problem, observers should look to the cases of former Serbian President Slobodan Milosevic and Chad dictator Hissène Habré.

Like Bashir, Milosevic flaunted an international arrest warrant. Indicted for crimes against humanity by the International Criminal Tribunal for the former Yugoslavia (ICTY) in May 1999, he was finally arrested by Serbian police in April 2001 and sent to the tribunal three months later. Several factors contributed to his downfall: Serbia's crippling military loss in Kosovo in 1999, his defeat at the polls in 2000, and Washington’s concerted economic pressure on the new democratic leadership in Belgrade to hand him over for trial.

When Milosevic was finally transferred to the ICTY, many of his former victims rejoiced. As one said: “I counted myself among the dead, but God wanted me to survive and speak out for [the victims]. I want to go there and tell what his forces did to us. … If he were to be sentenced a year for each gravestone, it would not be enough.” Milosevic died before the end of his long-running trial, escaping judgment.

But another ex-head of state, Habré, the former president of Chad, was not so lucky. He was convicted in May in a Senegalese court, backed by the African Union, of torture, sexual slavery, and rape as crimes against humanity that took place in the 1980s.

Habré’s trial represents the first time an African court has convicted a former head of state of another African country for crimes against humanity. What was most memorable about the trial was the explosion of joy that erupted in the courtroom from the survivors and family members of Habré’s victims when the judges announced his life sentence. As a lawyer who was instrumental in pursuing the case explained, the outcome was “a testimony to the perseverance of a band of victims, activists, and supporters who made this trial happen.”

What the Habré and Milosevic cases have in common—and what differentiates them from Bashir’s case—is that efforts to arrest and prosecute them began as they were either beginning to lose their hold on power or were out of power completely. By contrast, Bashir continues to lead Sudan and enjoys the political backing of key African states as well as powerful patrons, such as China and Russia. Moreover, Western states continue to depend on Bashir for cooperation with peacekeeping operations in Darfur and counterterrorism efforts in the region.

Yet the United States and other countries can play a role in hastening his arrest. When Museveni mocked the ICC at his recent inauguration, Bashir was clearly amused—but others in the audience were not. As the Sudanese leader laughed, delegates from Canada, the European Union, and the United States stood up and walked out of the ceremony in protest.

Later, State Department spokesperson Elizabeth Trudeau said that Museveni’s comments were “insulting” to both the ICC and to victims of genocide. “We believe that walking out in protest is an appropriate reaction to a head of state mocking efforts to ensure accountability for victims of genocide, war crimes, and crimes against humanity, particularly when his country has committed to accountability as an [ICC] state party,” she said.

So what can the Obama administration do now to isolate Bashir and help secure his arrest? Three options are worth considering.

First, Samantha Power, the U.S. ambassador to the United Nations, should call for a new Security Council resolution reiterating the Council’s 2005 referral of the Darfur situation to the ICC and obligating all UN member states to arrest and transfer Bashir to the court. This would not only strengthen the Security Council’s position (the 2005 resolution only urges states to cooperate with the court) but would provide a political injection to the ICC’s campaign to marginalize Bashir and, it is hoped, turn the tide of international support in favor of justice.

Second, the United States should commit to arrest Bashir if and when he next travels stateside. Luis Moreno-Ocampo, the first chief prosecutor for the ICC, recommended such a course of action when Bashir applied to visit the United States in 2015. That time, the United States ignored Bashir’s visa application, avoiding a confrontation. However, another opportunity may arise this fall: Bashir has reportedly applied for a visa to attend the opening of the United Nations General Assembly this September in New York.

The United States could justify his arrest by invoking the UN Genocide Convention of 1948, which calls upon states to take measures to prevent and prosecute the crime of genocide, as well as the Nuremberg Charter and ICC Statute, which establish that there is no sovereign immunity for heads of state who have been indicted by international courts. Although the United Nations’ headquarters agreement—which provides the terms under which the United Nations established its headquarters in the United States—can be interpreted as barring the arrest of state leaders, that agreement can also be interpreted as disallowing diplomatic immunity when an indicted party is the subject of an international arrest warrant for the commission of serious international crimes such as genocide.

Third, the United States should develop a series of incentives to encourage other states to arrest Bashir should they get the opportunity. Although offering a bounty through its Rewards for Justice program may not make sense since Bashir is not in hiding but is rather traveling in plain sight, Washington could work with like-minded states to use their political and financial leverage to induce greater cooperation among ICC countries to limit Bashir’s travels and eventually arrest him, as it did in 2001 with the European Union to secure the arrest and handover of Slobodan Milosevic for international trial.

When it comes to the ICC, the international community must play the long game. As history has repeatedly shown, it is only when a president’s power slips, when he is forced out of office, or when his alliance with powerful a patron state fades that the voices of victims and their calls for justice can be acted upon.

Ultimately, the United States is one of the few nations powerful enough to amplify the voices of survivors and local organizations and to ensure that justice comes soon for the victims of Darfur.