Bashir v ICC: Where is African justice in all of this?

Sudanese President Omar al-Bashir arrives in Khartoum from Johannesburg on June 15, 2015. Bashir left South Africa even after a court ordered him not to leave as it decided whether to arrest him over alleged war crimes for which he has been indicted by the International Criminal Court. AFP PHOTO

Sudanese President Omar al-Bashir arrives in Khartoum from Johannesburg on June 15, 2015. Bashir left South Africa even after a court ordered him not to leave as it decided whether to arrest him over alleged war crimes for which he has been indicted by the International Criminal Court. AFP PHOTO

Sudanese president Gen Omar al-Bashir suffered a very ‘un-presidential’ couple of days at the just concluded 25th Ordinary Summit of the African Union in the Johannesburg, South Africa’s financial capital. After a group of activists asked a court in Pretoria to follow through with an ICC (International Criminal Court) indictment, what followed was both hilarious and alarming in equal measure.

The head of state was forced to hide away and then flee in the dead of the night. That, I found quite amusing. A president is supposed to be treated in a ‘presidential’ manner; so, the idea of one being forced to sneak onto his own plane and then lie that he isn’t on the manifest is laughable.

However, if we move beyond the funny side of al-Bashir’s ‘Escape from Joburg’, the fact that an ICC indictment could cause the potential arrest of a sitting head of state, moreover one whose country wasn’t a signatory to the Rome Statute that instituted the Hague-based court, is no laughing matter.

This indictment is, in the minds of many Africans (myself included), a power move by a western dominated UNSC (United Nations Security Council). A move that neither the Sudanese government nor the African Union could appeal. When the UNSC’s move was first publicized I bristled at the legal loophole that allowed the Council to refer anyone it wanted to the court. I thought that it was the height of arrogance and hypocrisy. After all, what was the probability of one of them being referred to the ICC for crimes against humanity? None at all. Were any of them perfect? Not at all.

However, I will not hide my head in the sand and pretend that everything was sunshine and rainbows a decade ago in Darfur.

There was a reason that the UNSC decided to refer the Sudanese president to the ICC as per United Nations Security Council Resolution 1593 in a resolution adopted on 31, March 2005.

Their move was based on a report submitted to the UNSC by the International Commission of Inquiry on Darfur. According to the report, the Government of Sudan and the Janjaweed militia were responsible for serious violations of international human rights law. These alleged violations included rape, torture and enforced displacement among others.

The victims of these crimes deserve their day in court. Their hurt mustn’t be swept under the carpet. For too long, a culture of immunity has reigned on our beautiful continent. Most especially when the victims have been civilians. This must end.

Enter the AfCHPR (African Court of Human and Peoples’ Rights). This Arusha-based court, first established in 2004, should be Africa’s answer to the ICC. However, since its establishment it has dealt with only three cases; one involving Senegal (in 2009), another involving Tanzania (in 2013) and the last involving Burkina Faso (in 2014). None of the cases it has heard have involved serious crimes against humanity.

Are we going to pretend that no such crimes have taken place? Are we going to ignore the crimes in the Central African Republic? The crimes in the DRC? The xenophobic attacks in South Africa against migrants?

There have been ample opportunities for the court to make itself relevant. I ask its judges, how have they ensured that the court protects human rights in Africa?

Is its hands being tied by the fact that only 27 of the African Union’s 54 countries have signed and ratified the Protocol to the African Charter on Human and Peoples’ Rights Establishing the AfCHPR so far? (Thankfully Rwanda is a signatory)

Is the lack of cases being referred to it due to the fact that Africans do know that such a court exists to defend their rights? Or do they simply not trust the court to try sensitive cases (such as Sudan’s) in an impartial manner?

If we want to get the ICC off our backs we need to show the world that we have our own legal mechanisms to combat the worst instances of human rights abuses. Until that happens, Africa’s arguments against the court will ring hollow. We cannot allow our fight against the neocolonial ICC (and the international system to that gives it teeth) to be falsely interpreted as endorsing impunity.

The New Times published this blog post

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