NEW YORK - The 2002 Hollywood comedy drama "Catch me if you can" was based on the legendary story of the elusive Frank Abagnale Jr, a smooth-talking con artiste who scammed millions of dollars through devious frauds and bouncing cheques. Perhaps he did it so successfully that the Federal Bureau of Investigation (FBI), after it finally tracked him down, eventually sought his expertise in solving similar white collar crimes.
Sudanese President Omar Hassan al-Bashir, who has been charged with war crimes, is no swindler. But his attempts to defy the International Criminal Court (ICC) and escape its clutches could well carry the catchy headline: "Catch me if you can."
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| Sudanese President Omar al-Bashir (L) meets with his Egyptian counterpart Hosni Mubarak in Cairo on March 25, 2009. Al-Bashir is on his second visit abroad since March 4, when the International Criminal Court issued an arrest warrant on him for alleged war crimes and crimes against humanity. AFP |
Last week he made a mockery of the ICC by flying to several countries, including Ethiopia, Eritrea, Egypt and Libya, all members of the African Union who are mostly supportive of him.
But despite a Security Council resolution asking UN member states to cooperate with the ICC, al-Bashir did not end up in handcuffs to be marched to The Hague for prosecution for crimes against humanity. He is still on the loose.
The ICC's Chief Prosecutor, Luis Moreno-Ocampo, has urged UN member states to arrest him, or perhaps intercept his aircraft, if he enters international air space. But undaunted, al-Bashir is also planning to fly into Qatar shortly to attend a summit meeting of Arab leaders -- besides his plans to visit Turkey, another country backing al-Bashir.
The support for al-Bashir is predicated on two factors: first, that his arrest would further jeopardize the ongoing peace negotiations in Sudan, and second, that his arrest warrant is prejudicial because the ICC has been focusing mostly on African leaders and African warlords. What of the rest of the world's war criminals?
All this tragicomedy, however, does not reflect well on the ICC which shouldn't have issued an arrest warrant on a head of state -- if there was even a semblance of doubt that enforcing the law at that level is impracticable. The ICC was aware that al-Bashir had the support not only of the African Union but also the League of Arab States and the Organisation of Islamic Conference. Additionally, he also has the support of two veto wielding permanent members of the Security Council, namely China and Russia.
While it is commendable that the ICC was willing to live up to its judicial mandate, it knows fully well it is also hampered by its own limitations. Since it does not have a police force to enforce its arrest warrants, the ICC has to depend on member states to do its bidding. And what if member states refused to do so?
Asked whether the UN had any reaction to al-Bashir's defiance of the ICC by his repeated trips to neighbouring countries, a UN spokesperson deflected the question last week by saying: "Well, we have absolutely no comments on that."
The ICC charges of crimes against humanity slapped on al-Bashir makes it imperative for UN member states -- and specifically those who are State Parties to the Rome Statute that created the ICC-- to enforce the law by arresting the Sudanese President if he happens to be on their native soil.
When the Security Council asked the ICC to take action against Sudan -- which is not a State Party to the ICC-- the resolution said that while recognising that member states who are not parties to the Rome Statue have no obligation, it still urges all states and concerned regional and other international organisations to cooperate fully.
The use of the word "urges", not "demands," leaves room for member states to wriggle out of the situation. Clearly, there is no mandatory obligation on the part of member states -- which are not parties to the ICC -- to act on the arrest warrant. So far, all of the countries that al-Bashir has visited are not signatories to the ICC.
Clearly, the Sudanese president is not likely to visit any of the European countries or visit the UN in September to address the General Assembly. Both Europe and the US are not friendly territories, unlike Africa and the Arab world. And most of the European countries are signatories to the ICC.
The arrest warrant on the Sudanese president has also triggered a move to get African nations out of the ICC. Out of a total of 108 States Parties to the ICC, 30 are from Africa. Last week the President of Senegal Abdoulaye Wade appealed to African countries to withdraw from the ICC. Senegal's appeal is particularly significant because it is a member of the ICC.
At a UN news conference during the tenth anniversary of the ICC last year, Moreno-Ocampo said he had briefed the Security Council long before he issued the arrest warrant last month.
Defending his decision, the ICC Prosecutor admitted he decided to indict al-Bashir despite the Sudanese Parliament's strong objections that the move would endanger vital peace negotiations in Sudan, especially in Darfur. "My responsibility is judicial. I have no political responsibility," he said.
Responding to a question as to why all of his prosecutions had involved crimes committed only in Africa and not in other regions, Moreno-Ocampo said he gave priority to the gravest offences brought before the Court and that his selection of cases was not based on geographical or gender balance. | 
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