By Kerlin Hyppolite, Law & Policy, IJP
Recently, Malawian President Joyce Banda decided not to attend this year’s African Union (“AU”) Summit. In doing so, she has taken a stand against Sudanese President’s, Omar al-Bashir’s, continuing impunity and States Parties’ failure to cooperate with the International Criminal Court (“ICC”) in executing the arrest warrants against Bashir. This decision is an important step forward in isolating President Bashir and putting a stop to impunity and the continuing violence in Sudan. We hope that other African ICC Member States will follow her example.
The 19th (“AU”) Summit, themed “Boosting Intra-African Trade,” was originally scheduled to take place from July 9 to 16 in Malawi. President Banda, however, refused to welcome President Bashir, against whom the ICC has issued two arrest warrants—one for crimes against humanity and war crimes and the other for genocide. President Banda made it clear that President Bashir would be arrested in Malawi and turned over to the ICC if he attended the Summit. By taking this position, President Banda broke with the AU position on the ICC and the arrest warrants against President Bashir.
Under the ICC Rome Statute, signatories such as Malawi and 32 other African states are required to cooperate and execute arrest warrants issued against individuals who enter their territory. President Banda and Malawi have thus taken a stance unlike that of other African countries where President Bashir has been able to visit without consequence.
This is a very different Malawi from the one that we saw under President Banda’s predecessor, President Bingu Wa Mutharika. Mutharika, who suddenly died in April 2012, maintained a relatively good relationship with President Bashir and chose to disregard the ICC’s arrest warrants against Bashir when he visited the country in October 2011. This resulted in the ICC issuing a noncooperation decision against Malawi and referring it to the United Nations Security Council in December 2011.
The acts of Mutharika soured Malawi’s relationship with the international community, resulting in less foreign aid from donors. Breaking with the former president’s position, President Banda has declared that she does not want President Bashir near Malawi and wants to “avoid straining ties with key donors for her impoverished country.”
This fact has allowed some to say that President Banda’s refusal to support President Bashir is merely rooted in the desire to gain funds for Malawi—a premise not as admirable as standing up for justice no matter the cost. Political Scientist, Jonathan Moyo of Zimbabwe has said that Joyce Banda is trading in African solidarity for foreign aid.
The AU has long advocated for “African solutions, to African problems” with minimal intervention from foreigners. Since 2009, the AU affirms that neither it nor its members will not cooperate with the ICC and urged the United Nations to suspend the proceedings against President Bashir. The stated reason for this wariness is the misconstrued idea that the ICC is somehow targeting Africa. Although the 24 people facing charges from the ICC and the one person convicted (Mr. Thomas Lubanga) are African, several of these States have invited investigations from the ICC while many others have chosen to sign the Rome Statute, which is the basis for the ICC.
In the Darfur situation, the United Nations Security Council referred the situation to the ICC pursuant to Resolution 1593 (2005) and its Chapter VII powers. This resolution not only obligated the government of Sudan to cooperate with the ICC, but it also urged other Member States, including those of the AU, to cooperate. Consequently, these States should respond to the invitation of the United Nations to “facilitate the work of the Prosecutor and of the Court” pursuant to this resolution. Because several countries have continued to refuse to cooperate despite these international obligations, the ICC has also referred them to the United Nations Security Council to take further action.
President Banda’s move does not come without challenge. Instead of bringing President Bashir to justice, the African Union has decided to move the Summit to Ethiopia for the same dates. This is a venue more welcoming to President Bashir. And, the issues do not stop there. As a result of the AU Summit withdrawal, the Malawi Tourism Association had to appeal for clemency from banks to allow lenders to renegotiate repayment methods previously in place.
Even with all this adversity, President Banda remains steadfast. She is refusing to attend the new Ethiopian venue for the Summit because President Bashir will be present. She will be sending her vice president instead. Her conduct is making it clear that she in no way endorses or supports President Bashir.
The President of Botswana, Ian Khama shares President Banda’s sentiment, saying of President Bashir: “His failed leadership is like a cancer in his country.“
AU officials, however, have continued to accuse the ICC of unfairly targeting African leaders and interfering in African affairs. The Permanent Representative to the AU and Ambassador to Ethiopia Ferdinand Montcho told the AFP news agency: “This matter of ICC, for me it is nonsense. Every time we want to have a summit they start disturbing us.” And, he added: “Why should they not let us hold our meeting [without] this cinema, this theatre, this play?”
The ICC’s newly appointed Chief Prosecutor, Fatou Bensouda from Gambia, has rejected the view that the ICC is a “pro-western, anti-African court.” In response to the accusation by some African Heads of State that the ICC unfairly targets Africans, Bensouda told the OpenForum conference in Cape Town, South Africa: “Indeed, the greatest affront to victims of these brutal and unimaginable crimes … women and young girls raped, families brutalized, robbed of everything, entire communities terrorized and shattered … is to see those powerful individuals responsible for their sufferings trying to portray themselves as the victims of a pro-western, anti-African court.”
By continuing to support President Bashir and encourage noncompliance with the Rome Statute, the AU shows a lack of commitment to human rights. Without President Bashir in the dock at the ICC and without an opportunity to present the evidence against him, there can be no justice. Any head of state, organization, or regional body that continues to support President Bashir is perpetuating his impunity and impeding the justice process.