Malawi is unlikely to be the last country to snub warrants of arrest from the International Criminal Court (ICC) as the body is tangled in conflicting laws.
Worse still, some countries resist prosecution because they are powerful, or they are not party to the ICC. This undermines the moral grounds of the court.
It also sets a reason for the less powerful governments to reject the court’s decisions and get away with it, Malawi News has learnt.
Malawi has been in the global spotlight this week for not arresting Sudanese president Omar Hassan Al Bashir who attended the Comesa Summit in Lilongwe last week.
Before his arrival, local and international organisations such as the American-based Human Rights Watch asked Malawi to effect the arrest warrant the ICC put on Bashir’s head in 2009 for war crimes in Sudan.
Senior Counsel for International Justice Programme at Human Rights Watch, Elise Keppler, told Malawi News this week Malawi’s failure to arrest Bashir is “an affront to victims of Darfur crimes” because Bashir belongs to the Hague to face prosecution.
Besides, she said, Malawi has gone against international obligations which it endorsed.
The ICC has come under attack for reportedly applying justice selectively, targeting small and less powerful countries.
Central to such arguments is the court’s inaction on former US president George W Bush who invaded Iraq in early 2000s.
Asked whether this was an invalid argument, Keppler said the general concern of uneven application of justice from the court is legitimate. She said powerful countries can evade ICC prosecution.
Others such as the US are actually not party to the ICC, implying that the court will have difficulties to act on them and their citizens.
“Individuals associated with powerful governments have been more able to evade prosecution.
The ICC cannot do more than its statute allows—notably there are extensive limits on cases involving individuals of states that are not party to the ICC (like the US),” she said.
She dismissed claims that ICC targets African states.
According to her, the majority of ICC cases from Africa were either voluntarily referred to the ICC by the African governments or by the United Nations Security Council.
Lawyer Justin Dzonzi said it was “sheer dishonesty” to sign on to or ratify the ICC treaty and then balk on its implementation.
However, he defended Malawi for not arresting al-Bashir. When the warrant was issued in 2009, it was served on Sudan.
Thereafter, al-Bashir has been to countries such as Kenya, Djibouti and China, all of which have not arrested him. Dzonzi wondered why Malawi’s obligation should have been bigger then.
He said ICC also faces a foe in conflicting treaties. International law prescribes immunity for sitting heads of state. On the opposite end, the treaty that created the ICC removes that immunity. And some states are party to both, and, therefore, have to deal with that conflict.
Furthermore, the fact that powerful leaders cannot be touched and that big countries are not signatories to the ICC treaty entrenches the impression that ICC is meant for smaller and hapless states, Dzonzi said.
“All these factors put together, one begins to question the moral ground of the ICC or anyone taking Malawi to task for not arresting Bashir,” he said.
On the diplomatic front, had Malawi arrested Bashir, it would have been an act of war against another sovereign state.
“And as a Malawian, I take a serious exception to those peddling the agenda that Malawi should have arrested Bashir. I think they are being insensitive. They are going hard on Malawi just because the country doesn’t have an international voice,” he said.
Alan Wallis, a South African-based lawyer, said it was unlikely Malawi would arrest Bashir. The relationship between Africa and the ICC is strained. President Bingu wa Mutharika is opposed to an African leader being tried at a court in Europe on crimes he has committed against African people.
In July last year, the African Union Summit rejected ICC’s request to establish an office on African soil.
But Malawi should have at least avoided this current negative spotlight by not inviting Bashir altogether, said Wallis, Project Lawyer at International Justice Programme, Southern Africa Litigation Centre.
He said ICC banks on cooperation of states in the arrest and transfer of suspects to The Hague. Otherwise, there would be no trials, and international justice would suffer.
“Africa, and now Malawi, has demonstrated the ease at which a state can simply refuse to cooperate, and the repercussions that amount to nothing more than a verbal slap on the wrist,” he told Malawi News.
But he warned this could be African leaders’ way of perpetuating human rights abuse against their people.
“Africa is saying no for the sake of saying no, giving very little thought to the implications of their actions, namely, perpetuating impunity for international crimes and ignoring the severity and impact this has on all Africans,” he said.
ICC has since written the Malawi Government to explain why it did not arrest Bashir.