IS THERE A LEGAL DUTY FOR RWANDA TO ARREST PRESIDENT BASHIR IF BASHIR TURNED UP FOR THE AU SUMMIT IN KIGALI?

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Rwanda is expected to host a big number of African Heads of State and Government. Among the expected heads of State in Kigali is President Bashir, an International Criminal Court ( ICC) indicted person.

Each ICC Treaty Member State has a legal duty to fully cooperate with the ICC. Consequently, every ICC Treaty Member State has a duty to arrest, and surrender to the ICC, any ICC indicted person on its territory.

Two ICC Treaty Member States – Uganda and South Africa – breached their ICC Treaty obligation to arrest Bashir and stated their reason for not arresting Bashkir. Uganda did not arrest Bashir because the government of Uganda believes the ICC has become an instrument of contemporary imperialism. South Africa did not arrest Bashir because the government granted functional immunity to all head of state that had been invited to South Africa.

The AU Heads of State Summit scheduled this month in Rwanda presents a complex legal issue. Is Rwanda under legal duty to execute the ICC issued arrest warrant for Bashir yet Rwanda is not a signatory to the ICC Treaty? The government of Rwanda has stated that if President Bashir turned up for the AU heads of State Summit, Rwanda would not arrest Bashir because Rwanda is not a signatory to the ICC Treaty.

Whether or not Rwanda can stand the international pressure to arrest Bashir if he showed up for the Summit is an independent issue that requires a different paradigm for analysis. However, it is public information is that the government of Rwanda, in conjunction with the US government, surrendered Gen. Bosco Ntaganda to the ICC. The US and Rwanda are not signatories to the ICC. Aside from contradicting theories on how Gen. Bosco Ntaganda was arrested or ” surrendered” to the US Embassy in Kigali, it is indisputable that the government of Rwanda ” cooperated” with the US Embassy in Rwanda to surrender Gen. Bosco Ntaganda to the ICC.

Didn’t Rwanda surrender Bosco Ntaganda to the ICC through the US Embassy? To the best of my recollection, Rwanda and the US were not signatories to the ICC Treaty at or around the time the two countries surrendered Bosco Ntaganda to the ICC, right?

Even without Gen. Bosco Ntaganda’s precedent, Bashir’s case presents a gray area of the law between the UN Charter and the ICC Treaty. First, Sudan is not a signatory to the ICC Treaty. Second the UNSC deferred Bashkir’s case to the ICC pursuant to the UN Charter as permitted by the ICC Treaty. This probably means that any UN Member State has an independent legal duty under the UN Charter to have Bashir arrested and taken to the ICC for trial. I think this case triggers each UN Member State’s unqualified cooperation with the UN- UNSC. Rwanda’s position that Rwanda has Treaty duty to cooperate with the ICC is probably a narrow analysis.

Will Bashir take the risk and show up for the Summit in Kigali? Would Kagame defy his Western sponsors’ orders to arrest Bashir? What would be the economic and/or political cost for Rwanda either way ( arresting or not arresting Bashir) if Bashir visited Rwanda?

Dr Charles Kambanda

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