ICC Indictment Forcing Bashir to Stay at Home

By Alan Boswell
Nairobi
An African Union summit in Nigeria was held to discuss the recommendations of a high-level panel report on resolving the Darfur conflict. Noticeably absent from the conference was Sudanese President Omar Hassan al-Bashir, despite a formal invitation from Abuja to attend.
In March, the Sudanese president became the first sitting head of state to be indicted by the International Criminal Court at The Hague.
Since acquiring the distinction of being the first head of state to officially double as an international fugitive, the president has categorically avoided stepping foot in any country that is a signatory to the ICC. Nigeria is just the latest in a number of African invitations skipped by the Sudanese leader, despite the defiance taken by the African Union against the arrest warrant.
Legal obligations
An international law lecturer in Nairobi, Gideon Maina, says that the AU stance to not recognize the indictment does not change the legal obligations many African nations face.
“What complicates the African situation is that those states who have acceded to the ICC statutes are in a political dilemma,” said Maina. “The African Union has taken a position in terms of cooperation with the ICC as far as the case of Bashir is concerned. But Nigeria, or any other country that is a state party, has an obligation under the statute to arrest and surrender Bashir.”
The president has since turned down formal invitations to travel to South Africa and Uganda, both state parties to the international court’s founding charter. In the case of South Africa, Khartoum was reportedly informed that if Bashir actually attended South African President Jacob Zuma’s inauguration, South Africa would have to arrest him.
A senior Ugandan official similarly told the media in July that Uganda would have no choice but surrender up the Sudanese president if he came to the country, despite having formally invited him to attend a regional conference in Kampala. Ugandan President Yoweri Museveni reportedly called President Bashir to apologize for the official’s remarks, but the Sudanese leader avoided the Kampala conference as well.
Taking extra caution
The shunning of the AU conference this week, though, is the most serious signal yet as to the level of caution the ICC indictment has imposed upon President Bashir.  Unlike the cases out of Uganda and South Africa, reports indicate that Nigerian authorities have been assuring the president that he would not be arrested. 
There was also a strong practical reason to have the Sudanese leader present for the conference, as Sudan is the primary focus of the meeting.
The delegates of the AU Peace and Security Council are to debate a report produced by the special AU panel, led by former South African president Thabo Mbeki, commissioned in response to the United Nations rejection of the African body’s request that Mr. Bashir’s indictment be deferred for one year.
The African Union says the arrest warrant will hinder the Darfur peace process. The Mbeki panel was tasked with recommending an African alternative to ending the conflict.
Maina cites the example of former Liberian president Charles Taylor as one example of why the Sudanese leader is being extra careful. Taylor was given refuge in Nigeria, but international pressure proved too much and Taylor was eventually kicked out. He now is undergoing trial at The Hague.
“I am just putting myself in the shoes of the advisors of Bashir,” said Maina. “You do not want to take any risk.”
While President Bashir’s critics may welcome the isolating effect the arrest warrant has had on the leader’s ability to travel, others argue that the indictment has had so far done little to undermine his authority. Bashir remains head of his ruling National Congress Party, and the only perceptible change in the Darfur conflict has been the retaliatory removal of Western aid groups from the region.
Domestic support
An analyst on the ICC for the Africa-based Institute for Security Studies, Godfrey Musila, says the international arrest warrant has not hurt Mr. Bashir at home.
“The indictment, and even the arrest warrant, does not seem to have lessened or dented his domestic support,” he said. “If anything it seems to have galvanized various sectors in Sudan behind the president.”
Musila foresees a likely re-election in April that would renew President Bashir’s legitimacy in the eyes of much of the world.
In addition, he says, the escalating focus from the international community on the North-South negotiations may force some Western countries to back off their support for the indictment.
“I do believe that at one stage those who are asking for his arrest may have to re-think their positions, or relax a little bit,” said Musila. “What is significant to note is that although there is an arrest warrant against him, not a single foreign country – not a single one of them – has said, ‘We do not recognize al-Bashir as a head of state.'”
Many analysts think that if the world wants to prevent the re-ignition of a North-South Sudanese civil war, it has little choice but to deal with a man many consider a war criminal.