Arrest President Omar al Bashir in Nigeria

Omar Al=Basgir

We call on President Umaru Musa Yar’adua to affect the arrest of the Sudanese President Omar al Bashir and hand him over to the ICC on charges of war crimes and crimes against humanity if he visits Nigeria for the African Union Peace and Security Council meeting in Abuja, scheduled to begin on Thursday, October 29, 2009.

Amnesty International revealed that President Umaru Musa Yar’adua has invited the Sudanese President Omar al Bashir to visit Nigeria even though he is wanted by the International Criminal Court (ICC) on charges of war crimes and crimes against humanity. In a statement, Amnesty International faulted the invitation.

We are disheartened to learn that President Yar’adua has apparently given assurances that al Bashir will not be arrested if he comes to Nigeria.

President Omar Al Bashir is an international fugitive from justice, charged with responsibility for crimes against humanity and war crimes against Africans. It would be shameful of Nigeria to offer him safe haven.

An arrest warrant for al Bashir was issued by the ICC on March 4, 2009.

Al Bashir and other senior officials shares responsibility for genocide in Darfur where the UN says up to 200,000 people has died and 2.7 million have been displaced since fighting erupted in 2004. The US has also designated Bashir’s government as a state sponsor of terrorism.

The African Union and other African Heads of state have chosen to throw their support behind President Al Bashir and Bashir, backed by the AU, Arab League and the Islamic Conference Organisation says he does not recognise the ICC’s jurisdiction. Very soon we will be bombarded with ‘convincing arguments’ against Al Bashir’s indictment from fellow Africans in defence of ‘Pan-Africanism’.

What are the facts?

According to reports, the situation in Darfur remained dire: “genocide continues. Rapes in and around the refugee camps continue. Humanitarian assistance is still hindered. More than 5,000 displaced persons die each month”.

I have argued elsewhere that our inability to do something about the Darfur genocide is a shame to all black Africans. In 2003, after ethnic African tribes from Darfur staged a revolt against Khartoum over neglect and discrimination, the government mobilised militias of Arab herders known as Janjaweed. They collaborated with the military in a campaign of murder, pillage and rape against civilians. The wave of killing in Darfur left as many as 300,000 people dead and drove 2.7 million from their homes. 

Former South African President Thabo Mbeki is expected to present a report on the situation in Darfur at the Abuja meeting. But so far Human Rights group says the situation in Darfur remains dire: “genocide” continues. Rapes in and around the refugee camps continue. Humanitarian assistance is still hindered. More than 5,000 displaced persons die each month”.  

The ICC judges say there is evidence that Omar al-Bashir is personally responsible for organising attacks against the population of Darfur, “murdering, exterminating, raping, torturing and forcibly transferring civilians and pillaging their property”. A 34-year-old deserter from the Sudanese army claimed he was ordered to implement a scorched-earth policy in Darfur, erasing villages, raping the women and killing everyone, including babies. Luis Moreno-Ocampo the chief ICC prosecutor said the evidence against Bashir was overwhelming, and UN member states must be ready to enforce the arrest warrant.

Contemporary international criminal law received a boost when on July 2002 the ICC came into existence, the new court has jurisdiction over genocide, crimes against humanity and war crimes committed on or after 1 July 2002

Article 27 of the ICC abolishes all immunities for heads of state and members of governments and parliaments: Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising jurisdiction over such person. 

The Rome Statute of the International Criminal Court is predicated on the principle of complementarity under which states have the primary duty to bring to justice those responsible for international crimes. But since the Sudanese government and officials have refused and/or neglected to prosecute the culprits, the International Criminal Court is right to assert its concurrent jurisdiction in any case where a state is unable or unwilling genuinely to investigate or prosecute under international law.

The Nigerian government has an unconditional legal obligation to arrest President Omar al Bashir and hand him over to the ICC should he enter Nigerian territory. Any failure to do this is a failure to fulfil obligations under international law and may amount to obstruction of justice.

The Nigerian government must act for the sake of thousands of victims of crimes against humanity and war crimes committed in Darfur.

Nigeria is a party to the treaty establishing the ICC and is obliged without exception to co-operate with the ICC and arrest and surrender anyone named in an arrest warrant to the ICC. If it fails to do so, the ICC can refer this clear violation of Nigeria‘s obligations to the Security Council under Article 87 (7) of that treaty.

President al Bashir was invited by Ugandan President Yoweri Museveni to this week’s African Union summit on refugees, returnees and internally displaced persons in Kampala. Following protests by NGOs, including Amnesty International, al Bashir did not attend the meeting.

Since the ICC issued the arrest warrant, al Bashir has visited seven states (Eritrea, Egypt, Libya, Qatar, Saudi Arabia, Ethiopia and Zimbabwe), none of which are parties to the ICC treaty.

Although the AU has urged states not to co-operate with the ICC in enforcing this arrest warrant, several states parties to the ICC treaty, including Botswana, Brazil and South Africa, have indicated that they would fulfil their legal obligations and arrest the Sudan‘s President if he were to enter their countries.

Article 86 of the Rome Statute of the International Criminal Court requires states parties to “co-operate fully with the court in its investigation and prosecution of crimes within the jurisdiction of the court.”

Article 87 (7) of the Rome Statute provides that “Where a State Party fails to comply with a request to co-operate by the court contrary to the provisions of this Statute, thereby preventing the court from exercising its functions and powers under this Statute, the court may make a finding to that effect and refer the matter to the Security Council.”

Many African civil society groups have supported the call for al Bashir to be arrested and surrendered to the ICC.

It is unfortunate, though not entirely surprising, that the African Union and other African Heads of state have chosen to throw their support behind president Al Bashir. After all, majority of them came to power by shedding the blood of innocent citizens and have stayed put ever since. Most still see nothing wrong with waging war against their defenceless citizens. This is not an occasion to ignorantly rail against western conspiracy and neo-imperialism.

Nigeria should be bold enough to call a spade a spade and arrest this criminal.

Daniel Elombah (LLM)