By Marlise Simons
Sudan’s president, who is wanted on charges of genocide and war crimes in his country, could soon find it harder to travel abroad.
On Thursday, judges at the International Criminal Court strongly criticized South Africa for failing to arrest the president, Omar al-Bashir, when he visited Johannesburg for an African Union meeting in 2015.
The court explicitly rejected South Africa’s argument that al-Bashir enjoyed immunity, as a head of state, while leading Sudan’s delegation to the meeting.
Al-Bashir has evaded the reach of international law since the court first issued a warrant for his arrest in 2009. Just this week, it was announced that he had accepted an invitation to visit Moscow.
Watching who shuns and who invites al-Bashir has become something of an international parlor game.
But the underlying question could not be more grave: Will a sitting head of government, wanted for crimes against humanity over his government’s violence against civilians in the Darfur conflict, be held accountable under international law?
The court holds out hope that the answer will be yes.
There should have been no doubt about al-Bashir’s claim of immunity, a panel of three judges said, because on the eve of his arrival, South African diplomats had consulted with the court and were explicitly told that as a member of the court, South Africa was obliged to arrest and surrender him.
The judges declined to formally refer the matter to the United Nations Security Council, saying that doing so had not borne results in the past, and noting that South Africa’s own courts had criticized the government for violating its legal commitments.
In a noteworthy move, however, one of the judges, Marc Perrin de Brichambaut, argued that South Africa and Sudan were under an obligation to arrest al-Bashir, because they are both signatories to the UN genocide convention, which took effect in 1951. A total of 147 countries have ratified that treaty, more than the 124 that have joined the International Criminal Court.
By highlighting the significance of the genocide treaty — and not merely the International Criminal Court itself — the ruling could open new avenues for litigation by rights activists, and could raise the political cost for some countries to receive a fugitive from war crimes and genocide charges.
Al-Bashir has been charged — though not tried — for genocide involving three African tribes in Darfur.
Violence in the region of western Sudan erupted in 2003 between the Arab-dominated government and non-Arab rebel groups.
According to prosecutors, government militia gangs, backed by military and police helicopters, were unleashed from 2003 to 2008 to burn hundreds of villages, bomb schools and poison wells, and they also engaged systematically in looting and in the rape of women and girls.
The United Nations estimates that about 300,000 people died and more than 2 million were uprooted in years of fighting. In 2005, it asked the International Criminal Court, based in The Hague, to investigate.
The court issued an arrest warrant against al-Bashir in 2009 and ordered him to face charges of war crimes and crimes against humanity over attacks on civilians in Darfur. Judges later added three counts of genocide.
Published on the Boston Globe on July 6, 2017.
Jordan must immediately arrest Sudan’s President Omar Al-Bashir and hand him over to the International Criminal Court (ICC) to face charges of genocide, war crimes and crimes against humanity, said Amnesty International today as the Sudanese leader arrived in Amman for the Arab League Summit.
“As a signatory to the Rome Statute that set up the ICC, Jordan is obligated to arrest Omar Al-Bashir and hand him over to the court,” said Lynn Maalouf, Deputy Director for Research at Amnesty International’s regional office in Beirut.
“Failure to arrest him would be a grave violation of the treaty and a betrayal of the hundreds of thousands of victims of genocide, war crimes and crimes against humanity committed in Darfur. The international community must not allow this to happen.”
The Hague-based court has issued two arrest warrants for Al-Bashir on the basis that there are reasonable grounds to believe that along with war crimes and crimes against humanity including murder, extermination and rape, he has committed genocide against the Fur, Massalit and Zaghawa ethnic groups.
Amnesty International wrote a letter to Jordan’s foreign minister in January, officially reminding the Jordanian government of its absolute obligation to arrest Omar Al-Bashir.
Published on AI's website on March 29, 2017.
By Jasmine Garsd
There’s a sadness to Amal — but it isn’t weakness. It’s like a firm, concrete melancholy. It’s hard to imagine her running away from anything. But here’s what happened: She had been teaching math when government forces torched her village in Sudan.
She and the villagers decided to make their way to a refugee camp.
That, she says, is when she saw the baby.
A baby girl, no more than 5 days old, trying to feed off her mother, who was dead. Amal picked that baby up, and walked for three days to the camp. Then and there, she decided to become an activist for women and children.
Amal says hardly any men came to the camp — they were all fighting or dead. The camp was mostly women, rape victims, some pregnant, many suicidal.
"It's a systematic targeting of women who are the bearers and the fabric of society," says Monica Feltz, the executive director of the International Justice Project, which assists victims of genocide, war crimes and crimes against humanity. She works with many victims of the Sudanese conflict.
"Commanders and those who are perpetrating the crime — they know women will be stigmatized if they are raped, if they bear children who are not of their tribes. This is a very systematic approach by the government forces," she explains.
There are currently over a dozen cases and investigations against African leaders being reviewed by the International Criminal Court. Most of these cases involve systematic sexual violence against women.
Amal says back in Darfur when she would report rapes, the official response would be, "Look, this happens. Assault, happens." And then, it happened to her.
She was detained, she was tortured, she was assaulted. When it was over, she was able to make her way to the US, as a speaker at a conference. She stayed, as a refugee.
Around the time Amal was fleeing to the US, something completely unprecedented happened. The International Criminal Court issued an arrest warrant for Sudanese President Omar al-Bashir. Among the charges? Systematic sexual violence. The court had never issued an arrest warrant for a sitting president before.
But Bashir was never arrested.
"My clients from Darfur, who have been waiting for 10 years ... longer ... for justice, were really let down," Feltz laments.
Bashir traveled freely to South Africa. A lot of people saw this as a sign of how ineffective the International Criminal Court has become. Last year, South Africa announced it was leaving the court. At the time, The Gambia released a statement saying "The ICC, despite being called 'the International Criminal Court', is in fact, an international CAUCASIAN court, for the persecution and humiliation of people of color. Especially Africans."
The Gambia ultimately decided to stay in the ICC. But just a few weeks ago, the African Union announced a mass withdrawal from the court, for the same reasons. The US and China, for example, aren’t even members of the court.
Defenders of the court point out that it’s current chief prosecutor is an African woman, Fatou Bensouda. Most of the cases have been referred by African countries. Luis Moreno Ocampo, the first chief prosecutor for the court and the man who brought charges against Bashir, says African countries pulling out is a sign of how scared they are of the court.
"Leaving the court is not because the court is inefficient. No. Burundi is leaving the court because the court is the only efficient international institution we have to stop massive atrocities," he says.
Ocampo says it’s not the future of the court he’s worried about. The court will survive — even if they don’t get President Bashir. But at least they are trying to get the truth out.
"African states need the ICC. Victims in Africa need the ICC. At least ICC is helping to keep saying, 'OK, but Bashir committed genocide. You'd like to ignore it, you'd like to forget it. But Bashir committed genocide.' So, the truth is important," he adds.
It's especially important for women, says Feltz. "I mean the domestic courts in Darfur are a joke. I think it's very hard for many women to gain any sort of justice at the local level if there aren't mechanisms in place for it. Which is where the ICC comes in."
Far away from Sudan, in the freezing grip of the US winter, Amal has been watching it all unfold. She recently got asylum status, but she says she wants to see justice in Sudan. And she asks herself what the value of an international court is if it can’t even get a leader arrested.
But she also says whether it’s the International Court, or God, someone will someday bring her justice.
This article was published on PRI's website on February 24, 2017.