LIKE in all international treaties, upon ratification, Uganda became party to the Rome Statute and thus has certain state obligations to fulfill. Fundamentally, these are twofold: the first is complimentarity and the second is full cooperation.
In the Rome Statute’s preamble and Articles 1 and 17 it is provided that states, not the court, have the primary responsibility for bringing those accused of genocide, crimes against humanity and war crimes to justice.
The preamble further affirms: “The most serious crimes of concern to the international community must not go unpunished. That their effective prosecution must be ensured by taking measures at the national level and by international cooperation.”
Member states should determine ‘to put an end to impunity for the perpetrators of these crimes.”
What is happening in Darfur is genocide and Hassan Ahmad el-Bashir as a principle agent (an indirect co-perpetrator) is indicted for intentionally directing attacks against an important part of the civilian population of Darfur, Sudan. Bashir is principle to the murdering, exterminating, raping, torturing and forcibly transferring large numbers of civilians, and pillaging their property.
Therefore, the Government has an international obligation as a member state of the UN to cooperate in the implementation of the Rome Statute, including arresting Bashir.
Articles 25 of the UN Charter states that: “The members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”
This is reiterated in Article 89 (1) of the Rome Statute which states that: “Parties shall, in accordance with the provisions of this part and the procedure under their national law, comply with requests for arrest and surrender the person indicted.”
The UN Security Council referred the situation of Darfur to International Criminal Court (ICC) and to this effect, an international warrant to arrest President el-Bashir of Sudan was issued by ICC on March 4. Uganda, a member of UN and a party to ICC, has a state obligation to cooperate in the matter and now that ICC has formerly requested her to do so.
Failure of Uganda to comply if Bashir comes at all, Article 87 (7) of the Statute gives ICC the power to refer the matter to the Security Council.
The question would be: Does Uganda care if it is taken to the Security Council for non-compliance with her obligation?
In my opinion, yes. Uganda currently holds a seat on the Security Council represented by Ruhakana Rugunda as a prominent voice of Africa committed to playing a constructive and positive role in promoting international peace and security.
In this regard, Uganda risks failing the test of bringing international force closer to issues of conflict in Africa should they fail to arrest Bashir if he steps into the country.
The cry for justice by Darfur victims at this point lies in the way Uganda reacts to the ICC request for the arrest.
More to Uganda’s dilemma is the African Union’s recent urge to the Security Council to use its power to suspend the indictment against Bashir on the grounds that international criminal proceedings against him would only further destabilise the Darfur region. Uganda might be at crossroads on which side to fall.
As a matter of fact, human rights violations of Darfur magnitude must never be tolerated in the name of balancing issues of justice and reconciliation. Bashir has a case to answer and Uganda has a state obligation to fulfill.
