President Bashir Is No Michelangelo

Earlier this week, President Omar Al-Bashir of Sudan, indicted by the International Criminal Court for genocide and crimes against humanity in Darfur, announced a “political and economic rennaissance” for Sudan and called upon the opposition to join the government and contribute to a constitutional reform process.  Prior to the speech, there had been some speculation in the press that Bashir might announce more dramatic measures, such a cease-fire in South Kordofan and the Blue Nile to allow for the distribution of humanitarian aid or even that he was stepping down and appointing a transitional government headed by his new Vice President, Lieutenant General Bakri Hassan Saleh, who assumed the position after his predecessor, Ali Taha, relinquished the position in December 2013.  President Bashir has stated in the past that he would step down in 2015 when the country is next slated to hold general elections.  Many had hoped that this week’s surprise announcement would move this timetable forward in the midst of unprecedented popular unrest, harsh sanctions, and a stagnant economy.  There was widespread disappointment that the speech offered nothing new or concrete in the way of reforms that would pave the way to normalize relations with the international community.  Apparently, there may be a follow up speech following this week’s African Union summit on agriculture in Addis Ababa, which Bashir is attending.

Yep, an indicted war criminal is on the move again.

Since he was indicted in 2009, Bashir has visited a whole range of countries (including Chad, China, Djibouti, Egypt, Eritrea, Ethiopia, Iran, Iraq, Kenya, Libya (pre- and post-Qaddafi), Qatar, and South Sudan), where he often enjoys a dignitary’s welcome.

Bashir’s radius has diminished considerably, however, in recent years.  In 2013, for example, he fled an African Union Special Summit on HIV/AIDs, Tuberculosis, and Malaria in Nigeria after being in the country less than 24 hours and following an effort by members of the local NGO community to serve a summons on him. This happened amidst expressions of concern about the visit from influential states and rumors that foreign powers might actually arrest him.  It also followed upon the issuance of a request to Nigeria by ICC Pre-Trial Chamber II to immediately take him into custody and indications that Nigeria was “considering the necessary steps to be taken in respect of his visit in line with [its] international obligations.”

Prior to that, and following a visit to Kenya, a court there issued a ruling indicating that Kenya was under an obligation to arrest Bashir if he returned to the country.  Bashir subsequently did not attend the Kenyatta inaugurationChad postponed its 2013 Greenbelt Conference of the Community of Sahel-Saharan States upon learning Bashir would attend on Sudan’s behalf.  Even in advance of his 2011 trip to China—a non-party state that is ambivalent, at best, toward international justice efforts—Bashir reportedly felt the need to confirm that he would not be arrested if he stepped off a plane.

Other states that once allowed him to visit have since withdrawn their welcome, including Malawi, which hosted Bashir in October 2011 for a summit of the Common Market for Eastern and Southern Africa (COMESA).  When confronted with a finding of non-cooperation by the Court, Malawi replied that it had

accorded him all the immunities and privileges guaranteed to every visiting Head of State and Government; these privileges and immunities include freedom from arrest and prosecution within the territories of Malawi.

The newly-installed administration of Joyce Banda, however, relinquished the opportunity to host an AU Summit in June 2012 —losing tens of thousands of dollars in income for its hotels and other benefits in the process—when Bashir indicated his intention to represent Sudan.  In addition, Bashir has not pursued or has cancelled potential visits to CAR, Zambia, Botswana, Uganda, and South Africa (for the World Cup).  Even Saudi Arabia, Tajikistan and Turkmenistan, ICC non-parties, refused permission for Bashir’s plane to cross into their air space when Bashir sought to attend the Iranian inauguration and meetings with China, respectively.  Bashir feared flying over Afghanistan because of the NATO presence there.

As this week’s Summit attests, Bashir remains welcome in Ethiopia, a non-ICC party and the headquarters of the African Union.  Since Bashir was charged, tension has mounted between the AU and the ICC.  Although African states were instrumental in the formation of the ICC Statute and its entry into force, the indictment of Bashir, as a sitting head of state, caused a volte face, at least among some AU members.  The AU has also rallied around President Kenyatta, who was indicted before he became Kenya’s head of state but is now facing trial in The Hague along with his Deputy President William Ruto.  (See our coverage here).  On their behalf, the AU has several times attempted to prompt the Security Council to invoke Article 16 of the ICC Statute, which allows the Council to defer ICC proceedings for a year in the exercise of its Chapter VII powers.  Although Article 16 language has been floated in the Council for both the Sudan and Kenya cases, it has been continually blocked by the United Kingdom, France, the United States, and other Council members.  When the Council did not act upon one such request other than to take note of it in Resolution 1828 and pledge to consider matters further, the AU adopted a decision in 2009 calling on its members to withhold cooperation with the Court pursuant to Article 98 of the Rome Statute with respect to the arrest or surrender of Bashir.

Elements within the AU have tried to foment a broader anti-ICC campaign, as reflected in an Extraordinary Summit devoted to the ICC hosted recently in Addis Ababa; however, AU members that remain supportive of the Court have managed to temper these impulses.  Although the Extraordinary Summit was poorly attended, the AU did decide to seek the postponement of the Kenya and Sudan cases until the two heads of state are no longer in office, although there has been no action yet at the Council and the Court has postponed the start of the Kenyatta case until 2014—the third such delay.  Although it is doubtful that the Council would defer the Sudan cases in light of Sudan’s recalcitrance vis-à-vis the Court, the Kenya case may present a different set of considerations.  The Council, however, recently rejected another deferral request for that situation.

Needless-to-say, the international community could be more assertive about preventing Bashir’s travel.  Obviously, all states—and particularly ICC members—should refrain from inviting him to events or otherwise facilitating his travel through granting fly-over or refueling rights.  At the same time, a strategy of containing Bashir presents a paradox.  The more he is confined to Sudan, the less likely it is that he might be arrested extraterritorially.  He remains relatively safe from capture within Sudan so long as he retains control over the reins of power and there are no insiders or members of the burgeoning opposition willing to act against him.  At the same time, as his ability to travel internationally or visit with UN and other officials is further constrained, the less effective he becomes as a representative of Sudan’s interests on the world stage.  This will decrease his base of support and signal to his inner circle that he has become a liability.

Assuming that he continues to travel, state supporters of the Court should focus their intelligence gathering on tracking his plans; share information on his whereabouts; establish an early warning system when he is on the move; and generally do more than issue nebulous démarches to potential host countries whenever Bashir reveals plans to travel beyond his borders.  Hosting or enabling the travel of Bashir should lead to tangible adverse consequences, including potentially the loss of voting rights in international institutions such as the ICC’s Assembly of States Parties.  Likewise, states that respect their international obligations and demonstrate a commitment to international justice, the rule of law, and the promotion of international human rights should be rewarded.  For example, due to “a pattern of actions …  inconsistent with the democratic governance criteria,” including allowing the Bashir visit, the United States—at the urging of Republican Representative Frank Wolf, a long-time critic of the Sudanese government slated to retire in 2014suspended Malawi’s $350M compact with the Millennium Challenge Corporation (MCC), a foreign aid agency dedicated to alleviating global poverty.  The compact was re-instated following President Banda’s courageous decision to forgo hosting the AU summit.  Malawi subsequently received a number of favorable loans from the International Monetary Fund and the World Bank as well as a visit from Hillary Rodham Clinton and later her husband and daughter.  France, for its part, refused to attend a Presidential ceremony in CAR if Bashir were present; the event proceeded without him.

Members of civil society must also remain attuned to Bashir’s travel and pressure potential destination countries to either refrain from inviting him to events or to signal that he is an unwelcome distraction at international gatherings.  To extent that their legal systems allow for private parties to initiate criminal proceedings pursuant to principle of universal jurisdiction or other forms of jurisdiction over extra-territorial crimes, NGOs should prepare complaints against Bashir and have them ready to be filed in the event he indicates an intention to visit.  Public prosecutors and investigating judges should likewise pursue charges against him if they are empowered to act independently of their executive branch (which would presumably have extended any invitation).  When Bashir does travel, these states should send extradition requests to his destination countries.  As we have discussed, a number of states have the ability to exercise some form of universal jurisdiction over the three core international crimes.  Ethiopia, although it has universal jurisdiction language on its books, is unlikely to take this route.

It remains to be seen whether Bashir will bow to pressure to announce additional reforms in advance of the 2015 general election.  No doubt, the loss of head-of-state immunity is a salient factor in any decision to step down.  Stay tuned… 

About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Follow her on Twitter (@BethVanSchaack).