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Idealism and realism of arresting Al-Bashir of Sudan

The adoption of the Statute of the International Criminal Court (ICC) in 1998 triggered world-wide celebration for its explicit commitment to engage the individual criminal responsibility of any person implicated in any international crime such as war crime, genocide, crime against humanity and aggression irrespective of the status of the offender.

Such celebration was particularly meaningful to those at the receiving end of human rights law and humanitarian law violations especially in Africa.

Since the entry of the international instrument into force in 2002, the ICC (a body set up and charged with judicial powers) has been quite active in invoking its jurisdiction over offenders. Following the humanitarian tragedy in Darfur, the ICC accused Sudanese President Omar Al Bashir of committing genocide and crimes against humanity.

It manifested such indictment by issuing an international warrant of arrest against him. The warrant obligates states parties to the Statute to arrest and surrender him to the ICC for prosecution. Nevertheless, Al Bashir has visited many African states that are states parties to the Statute without any of the host states attempting to effectuate the terms of the warrant. His visit to South Africa, a signatory to the Statute, happens to be the latest.

The failure by the South African State to arrest Al Bashir and render him to the ICC even with the added backing of the ruling of its domestic court tends to discredit international law and strengthen the argument of Austinians that international law is afterall no law but international positive morality. But it is obvious that international law is law.

However, we must admit that the fate that befell ICC’s warrant of arrest in South Africa demonstrates the dilemma of international law which, in its bid to serve humanity, has been struggling to balance its oscillation between the two diametrically opposed extremes of idealism and realism.

Prior to 1998, there was and there is still a pre-existing international customary law rule on the immunity of incumbent heads of states and foreign ministers, as confirmed by state practice and as applied by the International Court of Justice (ICJ) ruling in the Arrest Warrant (DRC v. Belgium).

Perhaps because of its discomfort with the virtual conversion of immunity of such incumbents to impunity of offenders of the law, the international community opted for a paradigm shift by agreeing via the Statute of the ICC to do away with any form of immunity for any person accused of any international crime without any regard for their status.

The Statute’s introduction of zero tolerance for immunity in a world that has been used to granting immunity to certain persons even for international crimes was obviously state signatories’ idealistic noble response to the yearnings of millions of persons forced to unabatedly endure man’s inhumanity to man.

In other words, states parties to the Statute substituted the law as it ought to be (zero tolerance for immunity) for the law as it has always been (immunity for certain incumbents).

Truly, recorded history contains circumstances where legislative intervention has changed for good the destinies of peoples and countries a la the abolition of slave trade, the dismantling of the edifice of discrimination against blacks in the US and the breaking of the barriers erected by the apartheid system in South Africa.

Instructively, all these historical interventions were enforced principally by means of state-based enforcement mechanism. However, in the case of executing the international warrant of arrest against Al Bashir, and this is the crux, only intra- or inter-state cooperation on the principle of pacta sunt servanda can do the magic.

Despite the fact that there is no doubt about the culpability of Al Bashir in the crimes committed in Darfur, each of his previous hosts (including South Africa) never bothered arresting and rendering him to the ICC because by its body language it rejects the idealism of zero tolerance for immunity.

This is why none of them has been able to muster the political will to execute the mandate of the ICC. Put differently, the states in question are more comfortable sticking to the reality of the law as it has always been, that is, the law granting immunity to certain persons occupying certain positions.

Evidently, the elevation of realism over idealism is a fact of inter-state relations. The reluctance of states to arrest Al Bashir has been worsened by a couple of factors. In the first place, the AU officially declared its refusal to cooperate with the ICC because of its self-serving belief that the ICC is overly witch hunting African rulers.

The second factor derives from the primordial nature of international law. Unlike domestic legal order which is based on individual responsibility, international law is largely predicated on collective responsibility carried out in the spirit of lex talionis (an eye for an eye, a tooth for a tooth) expressed in reprisal or retorsion.

Recall that even when (in pre-Boko Haram Nigeria) the US arrested the underwear bomber, Nigerian-born Farouk Abdul-Mutallab, within its territory in 2009, it still went ahead to demonize Nigeria just because of his Nigerian nationality by including our country to its extant list of terrorist countries such as Yemen, Afghanistan, Algeria, Iraq, Lebanon, Libya, Pakistan, Saudi Arabia and Somalia.

Thus, in the unlikely event that a host state arrests and renders Al Bashir to the ICC pursuant to its legal obligation under the Statute, the Sudanese State, in the fullness of its sensitiveness to the principle of sovereign equality of states, could feel violated and retaliate in every imaginable way against such a host state to the detriment of the latter’s interests, assets, citizens, assets, etc located within its territory.

This is the reality states fear most especially in this global village where the destinies of many states and their citizens are interwoven. How then do we manage the warrant of arrest without doing much collateral damage? Since the idealism of zero tolerance for incumbents appears to be presently utopian, we can fall back on the realistic provision in existing customary international law which permits the prosecution of persons like Al Bashir when they vacate office. But it must be conceded that the provision on zero tolerance for incumbents does not by reason of the impossibility or difficulty of enforcement become redundant.

This is because such provision in the Statute of the ICC has high deterrence value. The world would probably be safer and more peaceful if persons intending to commit atrocities are reminded of the possibility of being brought to the altar of justice despite their gargantuan official status.

• Igbinedion is of the Department of Jurisprudence and International Law, Faculty of Law, University of Lagos, Akoka, Lagos.

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