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What does the row between the AU and Malawi say about the arrest warrant for al-Bashir?

Recently, a disagreement between the Malawian Government and the African Union (AU) over the guest list for the upcoming bi-annual summit of the AU resulted in the former rescinding its decision to host the meeting. Malawi declined from hosting the July 2012 meeting after the insistence of the AU on the participation of the Sudanese president, Omar al-Bashir. More than just straining relations between Malawi and the AU family, and prompting the relocation of the AU summit from Lilongwe to Addis Ababa, the disagreement between the AU and the Malawian Government further underscores the weakness in the decision to indict al-Bashir.

It should be recalled that following a referral by the UN Security Council, the International Criminal Court (ICC) issued an arrest warrant against al-Bashir in March 2009 for war crimes and crimes against humanity allegedly committed in Darfur. In July 2010, the crime of genocide was added to the Sudanese president's charge sheet. As a signatory to the Rome Statute that established the ICC, Malawi is under obligation to cooperate with the court to arrest al-Bashir, a responsibility that sits uncomfortably with the AU’s hostile attitude towards the ICC in general and its disapproval of the indictment of al-Bashir in particular.

 

The decision by the ICC to indict al-Bashir has always been a thorny issue for the AU, pitting it against supposed promoters of human rights and causing divisions among its ranks. It's general misgivings about the purpose of the ICC aside, the AU's opposition to the court's action against al-Bashir is predicated on the argument that a judicial process against the Sudanese leader undermines efforts to restore peace in what is today Sudan and South Sudan. In the logic of the AU, al-Bashir, as president of Sudan, is too central to the peace process in the Sudans, so much that his arrest or the threat thereof would only complicate the search for peace and prolong the suffering of the Sudanese people. It is on this basis that the AU has petitioned, without success, the UN Security Council to freeze the arrest warrant against al-Bashir while also calling on its member states not to cooperate with the ICC in effecting the warrant.

Critics of the AU appear to see things differently. To them, the prosecution of al-Bashir is not only necessary to bring justice to the large numbers of people who have endured human rights abuses in Darfur, but would also set a precedent that is required to reverse the scourge of impunity on the continent. Consequently, the AU's stance on the judicial process against al-Bashir is dismissed as nothing more than a political campaign by a cohort of the African elite to derail justice on account of their own propensity to commit human rights violations.
From the standpoint of fighting impunity and protecting human rights, the latter argument is quite understandable, especially on a continent where violence and intimidation remain an integral part of strategies to access and retain political power. However, in the muddy world of politics, the imperative to separate right from wrong is not always as relevant as the task to identify what is workable. As such, the principled pursuit of justice and accountability may not always be appropriate.

The upcoming AU summit is expected to address the deteriorating relations between Sudan and South Sudan, at a time when continued fighting between Sudanese government forces and SPLM-North rebels in the border regions of Southern Kordofan and Blue Nile is also threatening starvation to thousands of displaced civilians. Barring the Sudanese president from attending the AU summit, as Malawi has tried to do in honour of its obligation under the ICC's Rome Statute, would only have strained relations between the AU and Khartoum, disrupting the efforts of the former in bringing peace to an increasingly unstable region.

At a general level, the disagreement between the AU and Malawi only goes to show that without the authority or capacity of the ICC to apprehend al-Bashir within the borders of Sudan, the only sting of an arrest warrant is its ability to isolate him. However, in the current state of affairs in the region, the isolation of al-Bashir comes with the potential of hurting the Sudanese people as much as it does him. While al-Bashir remains president of Sudan, reaching out to him will continue to be central to any peace process in the region. Isolating him, as the ICC warrant appears to be doing, will only handicap the work of the AU High-Level Implementation Panel on Sudan, which at the moment seems to offer the only hope in assisting the Sudanese to resolve their differences.

Perhaps it is time for the global community to learn from the US engagement with Sudan in order to better appreciate the negative effects of alienating a sitting president in the midst of an escalating conflict. Strained relations between Khartoum and Washington, triggered by the latter’s diplomatic approach intended to isolate al-Bashir, have left the Obama administration virtually helpless in the face of a threatening humanitarian crisis in the Sudanese regions of Southern Kordofan and Blue Nile. The latest efforts of Washington to reach out to al-Bashir through countries like South Africa and China, which still maintain good relations with Khartoum, is testament to the negative effect of sanctions and the threat of prosecution in the search for peace and stability in the Sudans.

Fritz Nganje is a researcher at the Institute for Global Dialogue. www.igd.org.za. He writes in his personal capacity.

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