ICC wants Uganda punished for failure to arrest Sudan’s Bashir

The Prosecutor of the International Criminal Court Fatou Bensouda has appealed to the United Nations Security Council to act against Uganda for continuing to welcome and host Sudanese President Omar Bashir to its territory.

As a signatory to the Rome Statute, the treaty that established the ICC, Uganda has an obligation to arrest Omar al-Bashir who was indicted by the International Criminal Court for masterminding crimes against humanity in Darfur region, where up to 300,000 people may have died and millions displaced in a civil war that erupted in 2003 between the Government and rebels.

Bashir faces charges of murder, genocide, forcible transfer, extermination and rape, among others, according to ICC warrants of arrest issued in 2010.

Despite the warrants and an outstanding obligation, Uganda hosted Bashir on a three-day state visit in November this year. Bashir also visited Uganda in 2016 when he attended the inauguration ceremony of President Yoweri Museveni who was starting another five-year term of office as president of Uganda.

On the occasion, President Yoweri Museveni led criticism of the ICC, calling it a bunch of useless people and a biased instrument of post-colonial hegemony. He stated that Africa should urgently reconsider its engagement with ICC on account of its humiliating treatment of the continent.

ICC Prosecutor Fatou Bensouda Omar Al Bashir recently traveled to countries that recognize the International Criminal Court (ICC) but none arrested or surrendered the Sudanese President. The list included Uganda, Russia, Jordan and Chad, a country which had been referred to the Security Council for non-compliance on in 2011 and 2013.

"Most recently, the Republic of Uganda, despite having been referred to this Council in July 2016 for its failure to arrest and surrender Mr Al Bashir to the Court while he was on Ugandan territory in May 2016, once again invited and hosted Mr Al Bashir during the week of the 13th of November," the statement reads.

She says the continuous non-compliance by Uganda and other State Parties is frustrating adding that effecting warrants of arrest remains a difficult challenge and a crucial area where greater collaboration is sorely needed.

Bensouda observed that the latest development emphasizes the importance and consequences of inaction on non-compliance referrals by Pre-Trial Chambers of the ICC in respect of Uganda and other States that failed to arrest and surrender Mr Al Bashir in previous years.

She added that that States Parties receiving suspects the Court seeks to arrest cannot become 'business as usual' not least out of respect for the suffering of victims and their yearning for accountability, and in the interest of greater enforcement of international justice.

Bensouda said that there can be no justification for States Parties to fail to arrest a suspect against whom an ICC warrant of arrest has been issued, irrespective of that person's official status.

Bensouda expresses concern over the inaction by the Security Council to which state parties have previously been referred. She says that the costly inaction has the potential to undermine the fight against impunity, the effect of which is to lower the bar of accountability that many have fought to raise.

"This continuous nonfeasance only serves to embolden others to invite Bashir to their territory, safe in the knowledge that there will be no consequences from this Council for such breaches," she added.

Bensouda's briefing comes one day after the Pre-Trial Chamber II of the ICC decided that Jordan, a non-permanent member of the Security Council, was non-compliant when Bashir visited Amman in March. The Chamber agreed to refer the matter to the Assembly of States Parties of the Rome Statute and to the Security Council.

In June 2015, Bashir visited South Africa. While the Chamber established that there was no legal or factual justification for South Africa's failure to arrest and surrender Bashir, it decided against referring South Africa to the Assembly of States Parties or to the Security Council.

In July 2016, the International Criminal Court referred the governments of Uganda to the United Nations Security Council for failing to arrest Sudan's president Omar Al-Bashir during his visit in May 2016.

In its subsequent submission, Uganda said that the invitation to President Al-Bashir was informed by the standpoint that continuous engagement of leaders in the region, Al-Bashir included, is both important and unavoidable.

Uganda also made reference to a decision made by the African Union Assembly of Heads of State and Government that the AU member states shall not cooperate with the Court's request for arrest and surrender of Omar Al-Bashir to the Court. The decision was in accordance with article 98 of the Rome Statute concerning immunity to sitting Heads of State.

But the ICC says that legal obligations under the Rome Statute cannot be put aside or qualified for political expediency.