Bashir’s shadow visit to Uganda: The subjugation of justice to politics

Published: 12 Aug 2015
By: Lucy Hovil

On Sunday 9 August, the Ugandan government announced that Sudan’s President Omar Bashir would join Ugandan president, Yoweri Museveni, Kenya’s president, Uhuru Kenyatta and Ethiopian Prime Minister, Hailemariam Desalegn in Entebbe to discuss the political crisis in neighbouring South Sudan. The Ugandan government assured Bashir that they would not arrest him. As the government spokesperson stated, despite calls from the International Criminal Court (ICC) for Bashir’s arrest, the “African Union has a different position, of not cooperating on ICC, and Uganda will respect that.” The prospect of the visit was, however, quashed almost as soon as it was mentioned, with the Sudanese Ambassador in Uganda saying that Bashir would not attend.

Yet the very prospect of his visit – and the defiance against his arrest – was all that Museveni needed to re-confirm his positioning vis a vis the ICC. Even without Bashir touching down on Uganda soil, the Ugandan government’s assertion that it would not carry out the warrant once more highlighted the increasingly long list of countries that have allowed Bashir to visit without consequences.

Of course, there is not much use speculating why, in the end, Bashir did not come – if, indeed, he had ever planned to do so. Although the arrest warrant has given Bashir’s international travel a certain edge to it, few doubted that, had he come, he would have been allowed to return to Khartoum untouched: there is nothing past or present to indicate that President Museveni would have actually authorised (or allowed) his arrest. As we all know, birds of a feather must stick together.

The failure to implement the arrest warrant has reached almost theatrical proportions. ICC prosecutor Fatou Bensouda has persistently reminded those countries that are signatories to the Rome Statute of their legal obligation to arrest President Bashir (and numerous NGOs have done so as well). Others have argued that the obligation is mitigated or perhaps contradicted, by the customary law principle of head of state immunity, by the AU decision on cooperation with the ICC or on the grounds that it would interfere with the functioning of diplomacy. But these arguments have never been litigated and the obligation, whatever its nature, has been ignored.

On this occasion, the defiant announcement by Museveni’s office that he would not comply with the ICC’s arrest warrant has highlighted once again his willingness to play the ICC to his political advantage. Just over a decade ago, he was more than happy to invite the ICC to open an investigation into the war in northern Uganda when he needed to advance his international image, not least as things were heating up in eastern Democratic Republic of Congo and the court was eyeing regions like Ituri where the Ugandan army had been heavily engaged. He began to back-peddle fast once he realised that the spotlight might also shine on crimes allegedly committed by the Ugandan army – and which, of course, might lead back to him. He was at his most vocal against the ICC when the Kenyatta case was underway, but the ICC then fell back into his favour in early 2015 when the Lord’s Resistance Army (LRA) Commander, Dominic Ongwen, was handed over to the ICC, saving Museveni from a series of thorny issues about the application of Uganda’s amnesty law and about the government’s capacity to carry out this trial. After all, it is much easier to sit back and to criticise than actually to do.

It is unclear why Museveni felt the need – at this particular point – to thumb his nose at the ICC (and, by extension, at its supporters in the international community). Perhaps he felt the need to remind the ICC that his cooperation in the Ongwen case is tenuous. Perhaps he is seeking approval from his colleagues in Kenya and elsewhere who are pushing an anti-ICC agenda. What is clear, however, is that he was not thinking about the victims. While Uganda and others within the AU are posturing, unspeakable tragedy continues to unfold in Sudan. The plight of victims in Sudan makes nonsense of arguments about sovereignty or the west picking on Africa, which are rolled out as standard patter by heads of state to justify their inaction. For sure, while there are genuine concerns about how Africa has become a testing ground for international justice; and while serious questions still need to be asked about the impact and efficacy of international justice endeavours in the region, these considerations need to be separated from the reality that an arrest warrant has been issued. Defying it is in a completely different league to opposing it at a theoretical level. In other words, whether or not issuing an arrest warrant was the most expedient course of action in the first place, is no longer the issue. The warrant exists. The question is what interest the government of Uganda has in defying it.

Therefore, while Presidents Bashir, Museveni and other members of their club steal much of the limelight, our focus needs to be on the realities that lie behind the seriousness of the charges: the arrest warrant, issued in March 2009, was on counts of crimes against humanity and war crimes committed in Darfur, with the crime of genocide later added to the charge sheet. The situation in Darfur continues to deteriorate with appalling consequences on the civilian population. At the same time, other areas of Sudan that do not fall under the auspices of the warrant are also suffering the brunt of the government of Sudan’s full force. The latest information from the Sudan Consortium shows that civilians continue to be heavily affected by aerial bombardment and ground fighting carried out by the Sudanese government. Since the war started four years ago, civilians have been displaced, injured, killed, detained or abducted in both Southern Kordofan and Blue Nile State. And the government of Sudan is only using increasingly dirty methods. In June, eight cluster bombs were dropped by Sudanese forces on rebel-held areas of Southern Kordofan State and increasing reports of mass displacement of civilians are coming out of Blue Nile State.

Out of the limited available tools to address the chronic deficit of justice in Sudan, the arrest warrant remains one of the few avenues for changing the status quo. It will never resolve everything, but the arrest of President Bashir, and the opportunity for a trial in which the evidence is allowed to speak for itself, would go a long way to bringing new hopes for victims.

Programmes: Resolving Displacement, Justice and Accountability
Regions: North and Horn of Africa, Sudan
Type: IRRI Blog