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Tag: Omar al-Bashir

  • Filmmaker ‘defeats’ Omar al-Bashir at DIFF

    IT was another case of Film in Exile, but the effort became rewarding, as another feather was added to the cap of Sudanese filmmaker, Hajooj Kuka, whose documentary film, Beats of the Antonov, depicts al-Bashir not just as the kind of leader who drops bombs on unarmed civilians, but also as a racist, dividing his country along racial and ethnic lines.

    The dreadlocked artiste has been winning awards for the expository film, the recent, being at the just concluded Durban International Film Festival (DIFF), where he picked the Artwatch Africa laurel.

    Kuka made a show of the vicious treatment the citizens are facing in the hands of the country’s leader to the amazement of many at DIFF, who were not familiar with the real story of the present Sudan.

    The showcase at DIFF, occurred barely a month after President Omar al-Bashir escaped detention in South Africa, following International Criminal Court (ICC)’s order.

    However, Kuka’s documentary says it all, giving a human face to al-Bashir’s victims at the last Durban film fest and earning nods from viewers and judges at the festival. Thus, at the Award Night ceremony on July 25, Arterial Network’s Artwatch Africa Award was presented to Beats of the Antonov. The Award which was accompanied by a R15, 000 cash prize (equivalent of N234, 230) honours an African film that meaningfully engages with issues of Freedom of Expression.

    Here is how the Artwatch Africa Jury describes the work of the Sudanese filmmaker: “War has brutally divided the peoples of Sudan. This compelling film shows how the power of music, dancing and culture sustains the displaced people living in the remote war-ravaged areas of Southern Sudan. In the face of bombs dropping from the Antonov aeroplanes above, their songs of liberation and militancy are a means of identity affirmation and mobilization. I want to dance, play, and have a normal life, they say, as they exert their claim to freedom and freedom of expression even under the harsh circumstances of war.”

    Interestingly, Arterial Network’s Artwatch Africa project promotes and defends artiste rights and freedom of creative expression. Therefore, Kuku’s award celebrates the transformative and conscientising power of cinema. The same way that works like The Dead Sea by Hindi filmmaker, Leena Manimekelai; Taxi by Iranian filmmaker, Jafar Panahi; Timbuktu by Malian filmmaker, Abderrahmane Sissako and Fuelling Poverty by Nigerian filmmaker, Ishaya Bako found expressions at foreign film festivals.

    As one of the most uplifting films at this year’s DIFF, the Jury acknowledged Kuka’s remarkable two-year commitment in providing witness to the spirited resilience of local communities and ethnic cultures whose rights have been denied within the country of their birth through Beats of the Antonov.

    The documentary tells the story of the people of the Blue Nile and Nuba Mountains in Sudan who fought with the South for independence but have remained trapped in a civil war in the North.

    The Antonov in the title refers to the planes that drop bombs on the civilian population there. And as Nuba Reports journalists wrote in The Daily Maverick just after al-Bashir’s escape, “As South Africa dissects the implications of President Omar al-Bashir’s visit and his illegal departure, it’s worth remembering that although the International Criminal Court wants him for crimes committed years ago, the Sudanese president is still in power  and he’s still dropping cluster bombs on civilians.”

    The documentary depicts al-Bashir as waging war “against all the African elements in Sudan.” As CityPress wrote in their review, al-Bashir’s “quest for a purely Arab state leaves the other 156 cultural African groups unaccounted for. Bashir calls these people ‘black sacks’ and vows to wipe them out.”

    Beats of the Antonov has charmed audiences around the world, even winning The People’s Choice Documentary Award at The Toronto International Film Festival and four other international awards.

    Kuka directed and shot the documentary over two years, at immense personal risk. He also produced alongside South African Steven Markovitz, as a co-production between Sudanese production company Refugee Club and South African company Big World Cinema. South African Khalid Shamis edited the documentary with kuka in Cape Town.

    His DIFF award is another defeat on his President, Omar al-Bashir.

  • Omar al-Bashir: Durban to witness another film in exile case

    ONE of the burning political issues in Africa will receive some cinematic review at this year’s edition of Durban International Film Festival which opens on July 16.

    This is the case of Sudan’s current president, Omar al-Bashir, who escaped detention in South Africa last month, following an order by the International Criminal Court (ICC).

    Al-Bashir’s case returns to South Africa, and will be evaluated by critical minds and the general public, courtesy of a documentary by Sudanese filmmaker, Hajooj Kuka, who captures the vicious treatment meted on the citizens in Beats of the Antonov.

    Kuka’s documentary, touted as an indictment of President Omar al-Bashir has won The People’s Choice Documentary Award at The Toronto International Film Festival and four other international awards.

    The work which gives a human face to al-Bashir’s victims, tells the story of the people of the Blue Nile and Nuba Mountains in Sudan, who fought with the South for independence but now remain trapped in a civil war in the North.

    It is understandable that this film will not show in Sudan. Thus, Beats of the Antonov joins the list of films such as The Dead Sea, Taxi etcetera, which have made waves in exile at different times.

    Indeed, the principle of art in the real sense of the word is not the decorative pictures and crafts that it used to be solely before the renaissance of the 14th and 16th centuries. This has even grown with time and I see it as a revolution of life ignited by activism; I see it as divinely-inspired creativity and in certain cases, an artist’s work became the object or subject of special pilgrimage and reverence.

    Few years back, Indian filmmaker, Leena Manimekelai’s film, The Dead Sea was in exile at DIFF. The flick was a haunting story about the lives of Tamil fishermen and the difficulties they faced in Sri Lanka. That blend of fiction and documentary was a protest against the injustices and ethnic cleansing which is considered a prodigal film by the Indian government and thus was banned.

    One striking line in the movie says; “I have always advocated that the people be armed, but now, I am convinced that not only the people, but the government should be disarmed”.

    It is usually only at film festivals that movies which are denied freedom in their countries of origin get hearing. This way, the filmmaker’s vision of expression is assuaged.

    Recall that Iranian filmmaker; Jafar Panahi, suffered worse fate. Not only were his films banned by the government of his country, he was committed to a six-year prison term and a 20-year ban from filmmaking by the Iranian government for attempting to explore the social situation in his homeland through works that appeal to the Iranian government as state offence. Although convicted, Panahi has been celebrated world over for what he stands for.

    Where are the activist filmmakers in Nollywood? If you remember the story of the first Doyen in Traditional Nigerian Drama, late Hubert Ogunde who had his own share of film activism, you will agree there is need for us to do more.  His play Yoruba Ronu; a satirical account of the strife that plagued Yorubas in the 1960s was banned in western Nigeria for some time but was produced with great success in other parts of the country.

    The political terrain requires filmmakers who should bring to filmic expression, the numerous ills plaguing Nigeria.

  • South Africa to argue against Bashir’s arrest

    South Africa to argue against Bashir’s arrest

    South Africa will on Monday argue against a court application to force the government to arrest Sudanese President Omar al-Bashir who has been indicted by the International Criminal Court, the justice ministry said.

    “We will meticulously argue for the application to be dismissed,” Reuters quoted Mthunzi Mhaga, spokesman for the justice ministry, as saying on local television station ENCA.

  • AU urges united stand on ICC

    AU urges united stand on ICC

    The African Union urged its members to “speak with one voice” to prevent criminal proceedings at the International Criminal Court against sitting presidents, according to a statement Saturday.

    The 54-nation organisation said it was disappointed that a request to the U.N. Security Council to defer the trials of Kenya’s leaders “has not yielded the positive result expected.” The African Union also has sought the deferral of criminal proceedings against Sudan’s President Omar al-Bashir, who has been charged with genocide in Darfur.

    Only Botswana has opposed the stand taken by the African Union, made in a statement received Saturday after a summit in Ethiopia attended by 34 leaders.

    “African states parties should comply with African Union decisions on the ICC and continue to speak with one voice,” the statement said, adding “There is an imperative need for all member states to ensure that they adhere to and articulate commonly agreed positions …”

    Kenya’s President Uhuru Kenyatta and his deputy William Ruto face charges of crimes against humanity at the international court at The Hague for allegedly orchestrating post-election violence that killed more than 1,000 people following a disputed presidential election in late 2007. Both men deny the charges.

    The International Criminal Court has recently come under strong criticism from African leaders who accuse it of racism in indicting only Africans. Countries such as Uganda have suggested they may decide to sever ties with the court in solidarity with Kenya. Some Africans also argue that the Kenyan leaders need to concentrate on governing their countries to ensure stability as the region faces unprecedented terrorist challenges.

     

    Ruto’s trial continues at The Hague but the case against Kenyatta may collapse. Kenyatta’s trial was to start in November but was postponed to February after the prosecution and defense teams said they needed more time to prepare. The prosecutor in December asked for an additional three-month adjournment after one witness withdrew and another said they gave false evidence.

     

    A Kenyan court on Friday refused to stop the arrest of a journalist wanted by the international court for allegedly interfering with prosecution witnesses in the case against Ruto.

     

  • Sudan, South Sudan move to protect oil fields

    Sudan, South Sudan move to protect oil fields

    Sudan and South Sudan have begun talks to deploy a joint force to protect oilfields in the South threatened by rebels, Sudan’s foreign minister said.

    Sudan’s President Omar al-Bashir flew to South Sudan to discuss the unrest there with his counterpart, Salva Kiir.

    The conflict pits supporters of Mr Kiir against rebels led by his sacked deputy, Riek Machar.

    At least 1,000 people have been killed since violence erupted on December 15.

    The violence started after Mr Kiir accused Mr Machar of attempting a coup – an allegation he denies.

    Nearly 200,000 people have been displaced in the conflict, which has taken on ethnic undertones. Mr Kiir is from the majority Dinka community and Mr Machar from the Nuer group.

    Yesterday, Sudan’s Foreign Minister Ali Karti said Mr Bashir and Mr Kiir were “in consultations about the deployment of a mixed force to protect the oilfields in the South”.

    However neither of the presidents referred to the proposal during their joint news conference in the South Sudanese capital Juba.

    When it seceded from Sudan in 2011, South Sudan ended up with most of the oilfields

    But it has to export the oil using pipelines through ports in Sudanss territory. The government in Khartoum now fears its oil revenue will be disrupted by the fighting in the South.

    The BBC’s South Sudan analyst James Copnall says it will be an extraordinary development if Sudanese forces return to the South.

    At least two million people died during the north-south conflict.

    Separately, the two warring parties in South Sudan have begun direct talks in Ethiopia aiming at a ceasefire.

    Analysts say that by seizing Bentiu, the capital of the oil-producing Unity State, the rebels have in effect been able to hold the country to ransom and made their bargaining position much stronger.

    However, not much progress has been made at the Ethiopia talks so far, Mr Kiir said at the news conference with President Bashir.

    He said his government would not meet Mr Machar’s demand to release 11 of his political allies accused of plotting a coup.

    They would be held accountable for the violence in South Sudan, Mr Kiir added.

    The BBC’s Alastair Leithead was with government troops when they were ambushed

    President Bashir called on the two sides to end the conflict through dialogue, saying Sudan would not back the rebels.

    China’s Foreign Minister Wang Yi is also due to hold talks with the opposing factions, in an attempt to push them to agree to a cessation of hostilities.

    China is a major investor in South Sudan’s oil industry.

    Also yesterday, the South Sudanese government announced it had agreed to a cessation of hostilities with a rebel it has been fighting for nearly two years, David Yau Yau.

    It had been feared that Mr Yau Yau, who has troops in Jonglei state, would join the new rebellion.

    Mr Yau Yau previously said he took up arms to win greater rights for his Murle ethnic group, rather than to overthrow the government.

    In another development, the United Nations said militiamen had taken control of a UN food warehouse in Bentiu and that UN vehicles had been commandeered in the rebel-held town of Bor.

    “This makes it very, very difficult for us to continue our work – the sole purpose of which is reaching civilians in need,” said Toby Lanzer, the UN’s humanitarian co-ordinator in South Sudan.

    Heavy fighting is continuing to the south of Bor, says the BBC’s Alastair Leithead, who was on the road between Juba and Bor.

    The rebels include a former military division made up of thousands of men who switched sides, our correspondent says.

    Until a ceasefire is agreed, fighting is expected to continue or even intensify, he adds.

    The latest trouble has its roots in tensions that go back long before 2011.

     

  • ‘Nigeria’s obligation under the Rome Statute’

    Amid the dust generated by protests by Nigerian Civil Society Organisations (CSOs) against President Goodluck Jonathan for not arresting Sudanese President Omar Al- Bashir and handing him over to the International Criminal Court (ICC) for prosecution during his visit to Nigeria, Chukwuemeke Eze examines the implications of this action on Nigeria’s obligations under the Rome Statute and Genocide Convention

     

    The United Nations Conference of Plenipotentiaries on

    the Establishment of the International Criminal Court

    took place in Rome from June 15 to July 17, 1998. On July 17, 1998, member states of United Nations (UN) overwhelmingly voted in favour of the Rome Statute of the ICC, creating the treaty establishing the first permanent international criminal court capable of trying individuals accused of genocide, war crimes and crimes against humanity. The treaty adopted during that conference is known as the Rome Statute of the International Criminal Court. Among other things, it sets out the crimes falling within the jurisdiction of the ICC, the rules of procedure and the mechanisms for States to cooperate with the ICC.

    Article 1 of the Statute establishing the court provides thus:

    An International Criminal Court (“the Court”) is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.

    Sixty countries were required to bring the treaty into force. On April 11, 2002 the 60th ratification necessary to trigger the entry into force of the Rome Statute was deposited during a special ceremony at UN headquarters, and the treaty then entered into force on July 1, 2002.

    The International Criminal Court investigation in Darfur, Sudan or the Situation in Darfur, Sudan is an ongoing investigation by the International Criminal Court (ICC) into criminal acts committed during the War in Darfur. Although Sudan is not a state party to the Rome Statute, the Situation in Darfur was referred to the ICC’s Prosecutor by the United Nations Security Council in 2005. As at 2012 seven suspects have been indicted by the court: Ahmed Haroun and Ali Kushayb, Omar al-Bashir, Bahar Abu Garda, Abdallah Banda and Saleh Jerbo, and Abdel Rahim Mohammed Hussein.

    The Darfur conflict was a guerrilla conflict that took place in the Darfur region of Sudan from 2003 until 2009–2010. The conflict began when the Sudan Liberation Army and the Justice and Equality Movement began attacking the Sudanese government in response to perceived oppression of black Sudanese by the majority Arab government. During the conflict government forces and Janjaweed militia have attacked and massacred black Sudanese in the Darfur region. These actions have been described as genocide by a number of governments and human rights groups. Omar Al-Bashir, Sudan’s president, has denied that his government has links to Janjaweed.

    The Security Council referred the Situation in Darfur on March 31, 2005 after the passage of Resolution 1593. The resolution was passed by a vote of 11 in favour and zero against, with four abstentions. Argentina, Benin, Denmark, France, Greece, Japan, the Philippines, Romania, Russia, Tanzania, and the United Kingdom voted in favour and Algeria, Brazil, China, and the United States abstained. The Prosecutor, Luis Moreno Ocampo, formally opened an investigation on June 6, 2005.

    Omar al-Bashir, the President of Sudan, was indicted on 4 March, 2009 with five counts of crimes against humanity and two counts of war crimes: attack against a civilian population pillaging, murder, extermination, forcible transfer of a population, torture and rape.

    On July 12, 2010 he was additionally charged with three counts of genocide of killing, constituting a crime of genocide in violation of article 6(a) of the Rome Statute; causing serious bodily or mental harm, constituting a crime of genocide in violation of article 6(b) of the Rome Statute; and deliberately inflicting conditions of life calculated to bring about physical destruction, constituting a crime of genocide in violation of article 6(c) of the Rome Statute.

    Nigeria signed the Rome Statute on June 1, 2000, and ratified it on September 27, 2001, becoming the 39th State Party. A Workshop on National Implementation of the Rome Statute was convened in Nigeria in November 2002. The Workshop resulted in a plan of action for the development of domestic implementing legislation.

    The Ministry of Justice sent an executive bill, entitled “The Rome Statute of the International Criminal Court (Ratification and Jurisdiction) Bill 2001” to the National Assembly for adoption (pursuant to Section 12 of the 1999 Federal Constitution). On 1 June 2004, the House of Representatives passed its own version of the bill. The bill was re-submitted by the executive arm of government in 2003. On May 19, 2005, the Senate passed a legislation implementing the Rome Statute. The Bill was never signed into law by the President.

     

    The Rome Statute (Ratification and Jurisdiction) Bill, 2006 was passed by both houses of the National Assembly, but was not harmonised for assent by the President before the end of the last civilian administration in May 2007. The bill is to be resubmitted by the Ministry of Justice, which committed to resubmit the bill as soon as possible during the 10th anniversary of the Rome Statute.

     

    Nigeria recently joined the bandwagon of AU members who chose to obey the 2009 AU Resolution not to co-operate with ICC to arrest and surrender Al-Bashir should he visit their states. Al-Bashir on the 15th of July attended the AU Summit on HIV/AIDS, Tuberculosis and Other related Infectious Diseases (ORID) in Abuja and despite calls from the civil societies and international communities to arrest and surrender Al-Bashir Government of Nigeria refused to do so but rather choose to abide by the AU Resolution.

    The Ministry of Foreign Affairs explained why Al-Bashir was not arrested in Nigeria. It said by the statute of the African Union (AU), he was supposed to enjoy immunity like other delegates. It also said Al-Bashir was in the country under the auspices of the AU and the nation owes an obligation to respect the decision of the continental body. The Ministry said the Federal Government decided to stick to the 2009 resolution of the AU urging the UN Security Council to defer action against Al-Bashir.

    For the records and avoidance of doubt, Nigeria’s position in this regard is consistent with the AU Assembly decision adopted at the 13th Ordinary Session of the Heads of State and Government in Sirte, Libya on 3rd July, 2009, as it concerns President al-Bashir of The Sudan.

    In this regard, it is worthy to recall that following the lack of action on the request by the African Union to the UN Security Council to defer the proceedings initiated against President al- Bashir in accordance with Article 16 of the Rome Statute of the ICC, the AU Assembly of Heads of State and Government decided inter-alia that the …AU Member States shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omar Al-Bashir of The Sudan…

    The AU decision further reiterated its request to the UN Security Council and appropriate response is still being awaited to-date. As a responsible member of the AU, Nigeria has a duty to take full cognisance of this decision in the overall interest of Africa.

    However, the Civil Society Organisations (CSOs) under the auspices of the Nigerian Coalition for the International Criminal Court (NCICC) had  earlier approached a Federal High Court in Abuja for an order compelling President Goodluck Jonathan to arrest Al-Bashir the minute he steps foot in the country and surrender him to the trial chamber of the ICC.

    Also, a group, Socio-Economic Rights and Accountability Project (SERAP) called on the Federal Government to “immediately arrest” Al-Bashir. The organisation noted that:

    Nigeria is a state party to the Rome Statute of the ICC, and as such, has international legal obligations to ensure that this country does not become a safe haven for alleged perpetrators of crimes under international law like Al-Bashir.

    In a statement by its Executive Director, Adetokunbo Mumuni, the organisation stated:

    The government risks sanctions by the UN Security Council if it fails to arrest President Al-Bashir and surrender him to the ICC at The Hague. President Jonathan now has a rare opportunity to assist the ICC and support the demand by the international community for justice for the victims of genocide and war crimes in Darfur. Ignoring the ICC’s arrest warrants will have huge legal ramifications for the country, and it is therefore in Nigeria’s national interest to act in this case, by arresting President Al-Bashir and surrendering him to the ICC to face fair trial for the allegations against him.

    Other civil groups also condemned the Federal Government for the state reception accorded Al-Bashir in his arrival in Nigeria and called for his immediate arrest and surrender to the ICC.

    At a press conference under the aegis of Nigerian Coalition for the International Criminal Court (NCICC), the Chair, Steering Committee, Chino Obiagwu, warned that:

    Failure of Nigeria to do so will be a brazen disregard of its international treaty obligation under Article 89 of the Rome Statute of the ICC which it has ratified since 2001.

    NCICC noted that “such failure also undermines the pursuit of international justice, peace and security which are the objectives of the ICC”, warning that:

    it amounted to grave diplomatic blunder for the Jonathan administration to invite and give full ceremonial reception to a war crime indictee in disregard of millions of victims of Darfur atrocities and their families, some of them Nigerian citizens who are still crying for justice.

    Nigeria as a state Party to the Rome Statute has obligation to arrest and surrender Al-Bashir to ICC. The AU decision not to cooperate with the ICC does not defeat ICC States Parties’ obligations to arrest or surrender under Article 89 of the Rome Statute. Obligations cannot be created subsequent to an ICC request simply to avoid cooperation with the ICC just as AU did, hence Nigeria should have chosen to co-operate with ICC that obeying AU Resolution on Al-Bashir.

    One of the key issues to this debate is whether Al-Bashir can even be legally prosecuted considering historical deference to immunity under customary international law. In issuing the arrest warrant, Pre-Trial Chamber I expressed the view that Al-Bashir’s status as a sitting head of state does not grant him immunity before the ICC. However, the African Union has asserted that Al-Bashir is protected by immunity. The question is: what is the basis of Al-Bashir’s immunity and is it valid against the charge of genocide before the ICC?

    However, Security Council Resolution 1593 alters the equation. Despite not being a party to the Rome Statute, Sudan became subject to ICC authority once the Security Council referred the matter to the ICC, stating that;

    the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor.

    The ICC authority is governed by the terms of the Rome Statute; by referring the situation in Darfur to the ICC, the Security Council essentially made Sudan subject to prosecution under the terms of the Rome Statute for the Darfur conflict. As such, Al-Bashir’s immunity as head of state has been suspended.

    The issue of immunity and Al-Bashir’s arrest is a far greater battle for the ICC to fight so long as Al-Bashir remains an incumbent President. Under Resolution 1593, Sudan has the obligation to “cooperate fully” with the ICC, meaning the government of Sudan should surrender Al-Bashir of its own accord. This is highly unlikely scenario considering Sudan still does not recognize ICC authority and would clearly be resistant to arresting its own head of state. Since the ICC lacks a related police force, the only other viable alternative is to rely on its member states to effectuate the arrest. Here, the immunities question begins anew because the question is no longer about immunity before an international tribunal but about immunity between states.

    On the surface, Al-Bashir’s travel plans do not seem to have been hindered much by the arrest warrants issued by the ICC; since his indictment, he has made trips to Chad, Kenya, Zimbabwe, Ethiopia, and Qatar. The Chad trip stands as the most significant because it is the first time al-Bashir has visited a member state of the ICC. By not acting upon the arrest warrants during al-Bashir’s visit, Chad defied international law and its own treaty obligations via the Rome Statute. Yet Chad is not the only gracious host on the aforementioned list to violate international law by hosting a leader accused of genocide. Ethiopia and Zimbabwe are both parties to the Convention on the Prevention and Punishment of the Crime of Genocide, and state parties to the Genocide Convention have a legal obligation to implement the ICC arrest warrants.

    As the situation stands with the Rome Statute and current customary international law, Al Bashir is immune from arrest by a foreign state so long as he is a sitting head of state. One factor that could possibly change this calculus is the Genocide Convention. This obligation stems from the holding in Application of the Convention on the Prevention and the Punishment of the Crime of Genocide (Bosnia v. Serbia), where the International Court of Justice held that states parties to the Genocide Convention have an obligation to take affirmative action to prevent and punish genocide. The ICJ analyzed Article VI of the Genocide Convention which provides:

    Persons charged with genocide … shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

    Of note is the finding of the ICJ that prevention and punishment, while linked, are separate obligations. Thus, the responsibility of contracting parties to the Genocide Convention to implement the ICC arrest warrants, regardless of their membership status in the ICC, is tied to both their obligation to prevent genocide, as well as their obligation to punish. In other words, the Genocide Convention would overcome the customary international law obstacle that the Rome Statute alone could not. Thus, states who are parties to both the Genocide Convention and the Rome Statute would be obligated by Art. VI to arrest those accused of genocide by the Prosecutor such as Al-Bashir.

    The position of AU requiring AU members not co-operate with ICC to arrest Al-Bashir is another critical issue. The AU has legal competence to require AU members to not cooperate with ICC under the Constitutive Act of the African Union. Article 9 (g) states:

    The functions of the Assembly shall be to…give directives to the Executive Council on the management of conflicts, war and other emergency situations and the restoration of peace;

    and Article 23(2) provides that “any Member State that fails to comply with the decisions and policies of the Union may be subjected to other sanctions”.

    However, for States Parties to the Rome Statute, the AU decision not to cooperate with the ICC does not defeat ICC States Parties’ obligations to arrest or surrender under Article 89 of the Rome Statute. Although Article 98 of the Rome Statute prevents the ICC from requesting assistance for arrest or surrender when it would require a state to act inconsistently with its obligations under international law, these obligations cannot be created subsequent to an ICC request simply to avoid cooperation with the ICC. Otherwise, any ICC request for cooperation can be sidestepped by artificially creating a new international obligation which is inconsistent with that request. It is an international law principle that emanated from the Nuremberg Trials after the Second World War that head of state immunity cannot be invoked to avoid prosecution for acts that are condemned as criminal by international law. This principle also finds expression in the Genocide Convention of 1948.

    Thus, for States Parties to the Rome Statute, compliance with the AU decision constitutes a material breach of the Rome Statute, as it is only the Security Council that can defer the investigation or prosecution in accordance with Article 16 of the Rome Statute.

    Moreover, the Vienna Convention on the Law of Treaties, 1969 (VCLT) prohibits compliance with the AU decision if it would be incompatible with compliance with the Rome Statute. Under Article 18, “State is obliged to refrain from acts which would defeat the object and purpose of a treaty when it has expressed its consent to be bound by the treaty.” ICC States Parties have consented to be bound by the Rome Statute. The object and purpose of the Rome Statute is “to put an end to impunity.” However, by complying with the AU decision and giving it priority, ICC States Parties are protecting rather than bringing Al-Bashir to justice. Thus, ICC States Parties that refuse to comply with the Rome Statute are thereby breaching their obligations under it.

    Nigeria, by violating its obligation to multi-lateral treaties like the Rome Statute and the Genocide Convention with impunity, risks losing its chance of becoming a permanent member of the United Nations Security Council when the reform of democratisation eventually berths at the United Nations. If this happens as speculated by many human rights pundits, this will be too high a price to pay for our diplomatic delinquency.

     

     

    Chukwuemeka Eze is the principal solicitor of Eze & Associates, based in Ikeja, Lagos.

     

  • Bashir leaves Nigeria, ICC demands arrest

    Bashir leaves Nigeria, ICC demands arrest

    Sudan’s President Omar al-Bashir has left Nigeria, where his presence at a one-day African Union HIV/AIDS summit defied International Criminal Court (ICC) calls for his arrest on charges of genocide and war crimes, officials told Reuters on Tuesday.

    His press secretary and Nigerian hosts both denied reports in the local media that he had left early fearing arrest.

    Monday’s summit lasted one day and Ethiopia’s Prime Minister Hailemariam Desalegn was the only African leader who stayed on until Tuesday, an official at a breakfast for them at the presidency that morning said.

    “President Bashir returned normally to Khartoum after participating in the summit in Abuja to resume his work in Khartoum,” his press secretary Emad Said told Reuters.

    Bashir, who is accused of masterminding genocide and other crimes during the conflict in Sudan’s Darfur region in which some 200,000 people were killed, arrived in Nigeria on Sunday, to the chagrin of human rights campaigners.

    The New York-based Human Rights Watch and the British government both expressed dismay at the decision to let him in, and a local activist group filed a court petition demanding his arrest, in line with Nigeria’s obligations under the ICC treaty.

    The ICC’s pre-trial chamber said on Tuesday it had asked Nigeria to arrest Bashir and hand him to the ICC the day before.

    The African Union voted in 2009 not to cooperate with the ICC indictments against Bashir. Nigeria’s presidency says its decision to allow him in was in keeping with that decision.

    African enthusiasm for the court has waned over the years, partly owing to a perception that prosecutors disproportionately target African leaders, a charge the ICC denies.