President Omar Al Bashir indicted by the International Criminal Court arrived in Chad on Wednesday to take part in a summit of the Community of Sahel-Saharan States (Censad) despite the pending ICC arrest warrants against him.

Chad is a State party to the Rome Statute and therefore has a responsibility to cooperate with the Court particularly, it has a responsibility to arrest suspects wanted by the ICC.

Some African countries have argued that under international law, they cannot arrest a sitting head of state. Indeed, Article 98 of the Rome Statute provides that if cooperation with the ICC requires that that a state will breach their obligations under international law, then they are not required to cooperate with the ICC in that instance. This is a fair argument. However, this provision cannot be used to derail justice and support impunity by Al Bashir.

Chad was aware of the outstanding arrest warrants against Al Bashir including one for the crime of genocide, yet they invited him to attend the meeting. It is one thing to claim that if Al Bashir arrived unannounced into one's country, it would be impossible for them to arrest him as under international law he has diplomatic immunity as a sitting heads of state; but it is entirely another situation to take positive steps to invite Al Bashir to personally attend the meeting! This is especially deplorable, when we consider that Al Bashir could have sent a representative as has been the case during the Igad Summit in Kenya, the AU Summit in Uganda, and the FIFA World Cup in South Africa.

ICC spirit

In this matter, Chad has acted in direct disregard of its obligations under the Rome Statute and its actions ridicule the spirit of the ICC to end impunity and provide accountability for genocide and international crimes.

It is the first time that Al - Bashir has set foot into an ICC member state since his indictment in 2009, yet Chad is the same country that suffered under the dictatorship of the former president Hissène Habré for his involvement in the murder of 40,000 political opponents and torture of over 200,000 civilians during his 8 year reign. The Chadian Courts charged and prosecuted Hissène Habré in absentia, but he awaits a criminal trial in Senegal for international crimes and therefore, such a country should have zero tolerance for impunity and should not shield Al - Bashir for political reasons.

The conduct of Chad should be penalized by the UN Security Council on referral by the ICC as empowered by Article 87 (7) of the Rome Statute which will also serve as a reminder to other ICC State Parties on their obligations. Al Bashir is accused with genocide and crimes against humanity which have caused the deaths of about 300,000 people and displacement of 2.7 million people the population of Sudan are being persecuted whilst the rest of Africa looks on, where is our humanity and our sense of justice?

Christine Muthoga

ICJ Kenya

Published: 1 August, 2010 , Sunday Nation