Africa

Where can Sudan's President Omar al-Bashir go now?

file photo taken on January 27, 2013 shows Sudan"s President Omar al-Bashir attending the 20th Ordinary Session of the Assembly of the Heads of State and Government (OSOA) during an African Union meeting in Addis Ababa Image copyright AFP
Image caption President Omar al-Bashir has been wanted by the ICC since 2009

Sudan's President Omar al-Bashir managed to leave an African Union summit in South Africa without being arrested. This was despite a court order requiring him to stay until a decision was made over whether he should be handed over to the International Criminal Court. So what has this changed?

Where can President Bashir go?

The 2009 International Criminal Court (ICC) arrest warrant for the president can be applied in any United Nations member state as the case was referred to the court by the UN Security Council.

So in theory he should not be able to travel anywhere, but in practice he has to make a calculation about the probability of being arrested - and that is more likely in a country like South Africa which, as one of the 123 states signed up to the ICC, is obliged to carry out its decisions.

President Bashir has visited other countries including China, Iran, Ethiopia and Nigeria. But in Nigeria in 2013, in parallels with the South African case, he had to leave earlier than scheduled after a rights group went to court to compel the authorities to arrest him.

Image copyright AFP
Image caption China is just one of the places President Bashir has visited since the ICC arrest warrant was issued

In 2012 an African Union summit was moved from Malawi after it blocked the attendance of President Bashir.

So will he ever be arrested?

Being forced to leave the African Union summit early is embarrassing for Mr Bashir but "it is also a severe set-back for the ICC", argues international law expert Marc Weller, as South Africa has been seen as an important backer of the court.

Image copyright AFP
Image caption The African Union has argued that no sitting head of state should be sent to the ICC

South Africa did ask the ICC last week if it was exempt as the African Union decided in 2013 that no sitting head of state should appear before an international court. South Africa argued that Mr Bashir was visiting under an AU invitation.

But that request was rejected by the court saying that South Africa was under an "obligation to immediately arrest and surrender" the president as soon as he touched down in the country.

Nevertheless, he was not arrested and the actions of South Africa, a country which has a reputation for having a high regard for the rule of law, could embolden other countries to follow its example.

Are sitting heads of state immune from prosecution?

In principle a sitting head of state has full immunity from prosecution, but this can be overridden by the UN Security Council or the ICC, Mr Weller says.

The ICC was set up, according to a statement on its website, to "help end impunity for the perpetrators of the most serious crimes" including genocide. So it is "the very essence of the ICC that it has the authority to arrest heads of state providing it has the jurisdiction", Mr Weller adds.

But without its own police force, the ICC needs to rely on the cooperation of countries to carry out its wishes.

Most African governments will remain reluctant to arrest Mr Bashir - they accuse the ICC of bias and only targeting Africans - but human rights groups, and now the courts, on the continent are certainly increasing the pressure on him.

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