By Michelle Fowler (Intern at Research Department at Foundation for Human Rights Initiative and student at Pomona College, California, USA)
John Bosco (Intern at the Research Department at Foundation for Human Rights Initiative and student at Nkumba University, Uganda)
- Fred Sekindi (Director Research Advocacy and Lobbying at Foundation for Human Rights Initiative)
Sudanese President Omar al-Bashir was welcomed at Entebbe International Airport, on Monday 13th Novenber, by President Yoweri Museveni commanding deputation of Cabinet Ministers and senior government officials. His two-day state visit of Uganda regarding “a number of issues of mutual importance between the two countries as well as regional matters” has already been met with considerable uproar, including from the International Center for Transitional Justice, who have exclaimed that Uganda is essentially harboring a fugitive.
This unabashed defiance of international law should come as no surprise. On 12 May 2016, al-Bashir was among the heads of states who were invited to attend Museveni’s inauguration for his fifth term as President in Kololo, Uganda. Multiple delegates from North America and Europe who were also in attendance walked out in protest due to al-Bashir’s participation as well as negative remarks about the International Criminal Court made by Museveni.
The International Criminal Court (ICC) issued warrants for the arrest of Omar al-Bashir in 2009 and 2010 due to crimes committed in Darfur, Sudan between 2003 and 2005 that left an estimated 300,000 dead. Article 5 of the Rome Statute gives the Court jurisdiction to try serious crimes of concern to the International community as a whole. Those crimes include crimes of genocide, crimes against humanity, and crimes of aggression.
All member states of the Rome Statute are under an obligation to cooperate with the ICC in arresting any person being indicted by the Court. In 2015, the South African Court of Appeal found that the government of South Africa had an obligation to arrest Bashir during his visit to South Africa to attend the African Union Summit. The International Criminal Court greatly criticized South Africa's failure to comply with the Rome Statute. In a scathing attack, the Court unanimously declared that “by not arresting Omar al-Bashir while he was in the territory of South Africa between 13 and 15 June 2015, South Africa failed to comply with the Court’s request for the arrest and surrender of Omar al-Bashir contrary to the provisions of the statute through preventing the court from exercising its functions and powers under the statue in connection with the criminal proceedings instituted against Bashir.”
In June 2002, Uganda became a signatory to the Rome Statute. More than a year later, in January 2004, it referred the situation in Northern Uganda to the ICC complaining that the Lord’s Resistance Army (LRA) had committed war crimes and crimes against humanity. This referral led to the Court’s indictment of top army commanders of the LRA, including Joseph Kony, Dominic Ongwen, Vincent Ottit, and Okot Odhiambo.
However, Uganda’s relationship with the ICC has soured. In October 2015, Museveni criticized the ICC for targeting African leaders, stating that its indictments within the continent were thinly veiled racism. At the 53rd Independence Anniversary in Gulu, he proclaimed that the ICC should not have tried the Kenyan President Uhuru Kenyatta. Museveni ultimately proposed that a regional court should try perpetrators of crimes against humanity and hear crimes of genocide. Additionally, he stated that the Hague based court is “a biased instrument of post-colonial hegemony” and that the International Community as a whole was useless and selfish. He further proposed that a regional court try international crimes.
Regardless of President Museveni's criticisms of the international system, Uganda has an obligation under international law to arrest Sudanese President Omar al-Bashir.
Under article 86 of the Rome Statute, parties are compelled to cooperate with the court in its investigation and prosecution of crimes within the jurisdiction of the court. Article 85 gives the ICC authority to request the cooperation of states. Indeed, the Court has sought collaboration to arrest al-Bashir. Through its diplomatic channels, Uganda received Bashir’s warrants of arrest. However, since the issuance of al-Bashir’s warrants of arrest, he has visited Uganda twice, and the government of Uganda has failed to comply with the request of the court.
President Museveni’s complete disregard for the ICC ruling is a total violation of International Law. It should be noted that under the Law of Treaty, a state is bound by any treaty it has signed. Under Article 26 of the Vienna Convention on the Law of Treaty, the Principle of pacta sunt servanda obliges states to respect their international obligations. Therefore, Uganda’s failure to arrest Omar al-Bashir is not only a violation of the Rome State but also a total violation of the International Law Principle of pacta sunt servanda.
While President Museveni continues to criticize the ICC, he has used it to prosecute individuals who are fighting to overthrow his government, such as Dominic Ongwen, a former LRA officer. This clearly shows that Museveni values its function and adheres to its legitimacy only when it is in his interest.
Pragmatist will argue that Uganda’s obligation under international law to arrest President Omar al-Bashir is secondary to the perceived benefits of his visits which include the preserve peace and stability in regional, a goal that could ultimately trump concerns from the greater international community. Previously having a contentious relationship dictated by accusations of promoting proxy war in both nations, the leaders of Sudan and Uganda now have a seemingly stable –and lucrative- partnership as two strategic neighbours. For example, Uganda imports goods worth $2.7 million (Shs9.8b) from Sudan, while in turn exporting $301.4m (Shs 1.1 trillion). The danger, however, is these considerations encourage impunity. They send a message to the international community that the most horrific crimes such as genocide can be tolerated.
 “Activists up in arms as Sudan president Omar Bashir starts two day visit in Uganda.” NTV, 13 November 2017.
 Roxanne Escobales, Darfur dead ‘could number 300,000’, The Guardian, 23 April 2008.
 Anita Powell, “ICC: South Africa Failed Obligations by Not Arresting Sudan’s Bashir,” VOA News, 6 July 2017.
 “Museveni blasts ICC over Kenyatta trial,” The New Vision, 9 October 2014.
 Dorothy Nakaweesi, “Bashir visit to cement trade relations with Uganda,” Daily Monitor, 14 November 2017.