Divisions Emerge Over Arrest of Bashir

Divisions have surfaced in the Ugandan government over whether to press for the arrest of Sudanese president Omar al-Bashir, who has been indicted by the International Criminal Court, ICC, for war crimes.



Bashir had been invited to attend the Smart Partnership Dialogue conference, which opens in Uganda on July 27. The annual conference, now in its 19th year, seeks to promote economic cooperation between African nations.



However, Ali al-Sadiq, Sudan's foreign office spokesman, confirmed that Bashir would now not be travelling to Uganda at the end of the month. He declined to give a reason, or say whether anyone else would be travelling in his place.



But a source close to the government, who spoke to IWPR on condition of anonymity, said that Bashir cancelled the trip at the suggestion of Ugandan president Yoweri Museveni, who wanted to avoid an internationally prickly situation.



In all probability, Bashir will now send a low-key official, said the source.



Uganda's situation is particularly difficult because it is both a signatory to the ICC’s Rome Statute and a member of the African Union, which has refused to cooperate with the ICC's decision over the indictment of Bashir.



Moreover, Uganda was the first country to take a case before the war crimes tribunal in the Hague: that of Joseph Kony, head of Ugandan rebel group the Lord's Resistance Army, who was indicted by the ICC in 2005 but has not yet been caught.



On July 13, Luis Moreno-Ocampo, head prosecutor of the ICC, was in Uganda for what many think was a move to remind the country of its obligations under the ICC.



At a press conference during Moreno-Ocampo's visit, the foreign affairs minister, Okello Oryem, suggested that Bashir could be arrested if he set foot in the country.



But Museveni was quick to head off a diplomatic row, by placing a call to Bashir, saying that Oryem was not authorised to make such comments, according to state media.



The disagreement about whether to press for the arrest of Bashir is played out in lower levels of government, too.



“Uganda must stand by its international obligations," Steven Tashobya, chairman of the Parliamentary Legal Affairs Committee, said. "We must be reliable partners. We cannot expect to tell other countries to arrest Kony if we are unwilling to execute arrest warrants for another person indicted for war crimes."



Not everyone in the Ugandan parliament agrees, though. James Akena, a member of parliament from northern Uganda, says that if Uganda were to take action against Bashir “it would throw the region into instability”.



Uganda and Sudan have suffered a somewhat acrimonious relationship over the years, with each side allegedly funding the rebel insurgencies in the other country.



Uganda has accused Sudan for years of providing money and weapons to the Kony's LRA. At the same time, Sudan has accused Uganda of backing the Sudanese Peoples Liberation Army, SPLA, during the bloody north-south war.



Akena is critical of what he sees as the government's double-standards towards the ICC, insisting that Kampala has been pushing for the arrest of Kony simply for "political reasons" and to get a potential opponent out of the way.



"If they believed in justice as a guiding principle, then they wouldn’t have taken their case to the court and consequently they wouldn’t be in this position,” he said.



The situation is made even more delicate by the fact that, in 2010, Uganda will host the first review discussion of the Rome Statute, which set up the ICC.



"If Uganda is seen to be too supportive of the African Union's position, then it is quite possible that this might provoke a change of venue," said William Schabas, director of the Irish Centre for Human Rights.



Schabas says that Uganda is under no legal obligation to press for the arrest of Bashir, even if he was to make a visit to the country.



Article 98 of the Rome Statute stipulates that a country does not have to proceed with a request from the ICC if doing so would be inconsistent "with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity".



Since Uganda is a member of the AU, Schabas argues that this takes precedence over the ICC.



But Schabas does think that the AU position is a worrying one, and that it significantly undermines the ICC's authority.



Lina Zedriga, an advocate for peace and security in Kampala, says that the AU's stance over the indictment of Bashir is not universally accepted by its members.



On July 6, the government issued a statement criticising the AU's position and reaffirming its own willingness to cooperate with the ICC.



“In some circles, the latest AU position has been perceived as Libya’s," said Zedriga. "I believe it is a deliberate measure to set protective precedents for any other possible arrests [of heads of state].”



Zedriga thinks Uganda should side with the ICC over the arrest of Bashir.



“Uganda should not be driven to take positions that do not advance issues of impunity, human security and conflict," she said. "Uganda will not suffer any fatal backlash if it arrests Bashir. Rather it will go down in history as having zero tolerance for injustice.”



Last May, Bashir did not attend the inauguration of Jacob Zuma as president of South Africa, because Pretoria had indicated that they had their ICC obligations.



So far, 109 countries have ratified the Rome Statue, 29 of which are also members of the AU.



Rosebell Kagumire is an IWPR-trained journalist.