Under the leadership of newly appointed president Joyce Banda, Malawi has refused to host the upcoming African Union summit due to its unwillingness to condone the ongoing impunity of Sudanese leader Omar al-Bashir, who is wanted by the International Criminal Court on charges of genocide, war crimes, and human rights atrocities committed in Darfur under his command. Although an ICC arrest warrant has been out for Bashir since 2010, he has repeatedly attended meetings and summits in a number of African countries over the past two years, including in Kenya, Ethiopia, Eritrea, Djibouti and Chad. Even the former Malawian president Bingu wa Mutharika welcomed Bashir at a regional economic summit last year. As the ICC has no law enforcement mechanism of its own, it relies on the local officials of member nations to apprehend individuals accused of crimes by the Court.
Bashir is wanted by the ICC for multiple international legal offenses as a result of his major role as Sudanese President in the atrocities in Darfur, which began in 2003 and resulted in the deaths of an estimated 300,000 people and the displacement of almost 4 million. In 2009, a warrant was issued for his arrest on five counts of crimes against humanity (murder, extermination, forcible transfer, torture, and rape) and two counts of war crimes (intentionally directing attacks against a civilian population or against individual civilians not taking part in hostilities and pillaging). While the Court stopped short of issuing a warrant on charges of genocide, upon further investigation of the evidence, such a warrant was issued just a year later in July 2010. The effect of charging Bashir with the crime of genocide was to oblige all states party to the UN Genocide Convention (all UN member states) to arrest the accused upon entry into the country or stand in violation of the Convention by condoning impunity for genocide, a significant violation of the convention which could plausibly (and should) result in serious political, diplomatic, or economic consequences.
The July AU summit was set to be held in Lilongwe next month, but will now be moved to the Ethiopian capital of Addis Ababa. The decision came after President Joyce Banda threatened to arrest Omar al-Bashir upon his entry into Malawi, in accordance with the ICC warrant currently issued for his arrest. She has also declared her intention not to attend the meeting and to send Malawi’s vice president as the country’s representative at the summit. Banda has avoided questions as to whether her absence at the meeting is in protest of Bashir’s attendance, and she has repeatedly stated that her first concern is maintaining the health of the Malawian economy and ensuring continued revenue from foreign donors.
While Banda’s move is clearly a step in the right direction in terms of the ICC’s international legal effort to apprehend Bashir, the President’s actions were likely motivated more by the desire to protect Malawi’s economic interests than as an expression of righteous indignance at al-Bashir’s continued impunity in the face of international condemnation. Banda has indicated that her boycott of the summit was intended to placate western governments and organizations which contribute significant sums of foreign aid to Malawi, donations which comprise an estimated 40% of the country’s annual GDP. She has noted that a visit from Bashir would be frowned upon by international donors and said in a statement, “My main agenda is to put Malawi on an economic recovery path and that’s what I am trying to do.”
Many have argued that we should be concerned by the way aid conditionality is being used under the ruse of “Malawi’s best interest” – is that to remain under donor colonization? It’s always more powerful to know choices are made from conviction rather than under threat. It would of course be ideal if countries were motivated to comply with ICC mandates—to which they are already signatories—simply on the basis of justice and respect for the rule of law. However, in the current international political climate such idealism is unfortunately not the reality. The truth is that state actions are motivated by a multitude of economic, social, and political factors, and it’s important to take all of these into account when assessing government action.
In addition, while it is legitimate to point out the flaws in the conditionality of foreign aid, it is also important to consider the alternative. Should governments and institutions contribute significant sums of aid money to countries whose governments openly flout the international legal mandates with which they have officially agreed to comply? Should there be no circumstances under which foreign aid contributions are denied to a government that openly supports the impunity of accused war criminals and perpetrators of genocide such as Omar al-Bashir? In response to allegations of “donor colonization,” international legal experts have responded by contending that continuing and reverberating voices and pressure from the CICC, various NGOs, activists, and political leaders are essential pieces of the puzzle to ensure compliance with the ICC. In other words, these institutions and actors have a unique power to influence government to take the right steps towards compliance with the ICC.
The international community has a legal obligation to ensure that human rights violations and crimes against humanity are not condoned by any state. In order to achieve this end, governments often resort to economic sanctions and the (sometimes limited) political tools at their disposal. While criticism of the use and distribution of foreign aid is a vital aspect of non-governmental oversight, it is important to consider each situation from multiple perspectives. Perhaps President Banda’s actions were motivated by economic and political interests rather than strong personal conviction, but the refusal to welcome Bashir into the country was an obligation Malawi had already assumed as a member of the UN and an official supporter of the ICC. In addition, the resulting discussion over international legal compliance and respect for international norms is a valuable opportunity to highlight the continued impunity of accused war criminals such as Omar al-Bashir and the legal obligation of the international community of states not to tolerate or condone the failure of governments to comply with international law.