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Exclusive: The International Criminal Court Really Wishes Djibouti Had Arrested an Accused War Criminal

American diplomats stayed away form Bashir, State Dept. claims.

Sudan's President Omar al-Bashir stands on a pick-up truck during a campaign rally for the upcoming presidential elections in El-Fasher, in North Darfur, on April 8, 2015. Sudanese go to the polls on April 13 in legislative and presidential elections widely expected to return Omar al-Bashir to power for another five years. AFP PHOTO / ASHRAF SHAZLY        (Photo credit should read ASHRAF SHAZLY/AFP/Getty Images)
Sudan's President Omar al-Bashir stands on a pick-up truck during a campaign rally for the upcoming presidential elections in El-Fasher, in North Darfur, on April 8, 2015. Sudanese go to the polls on April 13 in legislative and presidential elections widely expected to return Omar al-Bashir to power for another five years. AFP PHOTO / ASHRAF SHAZLY (Photo credit should read ASHRAF SHAZLY/AFP/Getty Images)

The International Criminal Court wants to know why Djibouti didn’t arrest Sudanese President Omar al-Bashir when he visited the tiny African nation earlier this month, and is giving the government there until next month to explain itself.

Bashir joined dignitaries from across the region — as well as a delegation from the United States — to celebrate the inauguration of Djibouti’s president, Ismail Omar Guelleh, who was sworn in for an unprecedented fourth term on May 8. Bashir had a unique distinction among the dozens of guests: He was the only one wanted by the International Criminal Court on charges of war crimes, genocide, and crimes against humanity.

Now, the ICC wants to know why Djibouti did nothing to apprehend him. In a May 17 letter, the court gave the government of Djibouti until June 24 to submit its “observations with respect to their failure to arrest and surrender Omar Al-Bashir while present on the territory of the Republic of Djibouti.” The existence of the letter has not been reported before.

The letter highlights a central weakness of the court, which was established in 2002. Djibouti is one of 139 signatories to the Rome Statute that established the institution, which technically obligates Djibouti to act against Bashir. But the ICC doesn’t have the power to sanction any member country which fails to arrest a suspect within its borders. (The United States is not a signatory to the Rome Statute.)

At issue is the fate of Bashir, who has long been an international pariah for the brutal war his forces have waged on several ethnic groups in Darfur since 2003, killing an estimated 300,000 civilians and displacing up to 2.3 million more. Bashir is the first sitting head of state ever indicted by the court.

The indictment hasn’t made Bashir shy about traveling abroad, however. Despite being wanted by the court, he’s flaunted the unwillingness of any head of state to place him under arrest during visits to China, Saudi Arabia, the United Arab Emirates, Egypt, Kenya, and Qatar. He paid an earlier visit to Djibouti in 2011.

The United States also sent a delegation to Djibouti, led by the State Department’s principal deputy assistant secretary for African affairs, Bruce Wharton.

Asked about Washington’s willingness to attend an event with a man wanted by the International Criminal Court, State Department spokesperson Victoria O’Connell told Foreign Policy that U.S. officials “raised our concerns about Bashir’s travel with the government of Djibouti.” She added that no one from the U.S. government had any contact with Bashir at the event.

A second State Department official, speaking to FP on condition of anonymity, said Washington has made its position with respect to hosting Bashir’s travel “clear” with allies, and has called on them to “not invite, facilitate or support travel by President Bashir.”

Interestingly, just days after the inauguration in Djibouti, a group of American, Canadian, and European diplomats walked out of a swearing-in ceremony for Ugandan President Yoweri Museveni in Kampala in part because Bashir was in attendance. Museveni, who is entering his fifth term, called the court “a bunch of useless people” who he no longer supports, remarks which sparked the walkout. Uganda, for the record, has also signed the Rome Statute.

Questioned about the walkout by reporters, State Department spokeswoman Elizabeth Trudeau said the walkout came “in response to President Bashir’s presence and President Museveni’s remarks.”

Bashir’s presence in Djibouti didn’t seem to rankle the U.S. nearly as much, probably because Guelleh’s nation serves as a hub for U.S. drone and special operations missions in Africa, Yemen, and the Middle East. China has also started construction on a naval facility there, stoking Washington’s fears of having to compete for Guelleh’s attentions, port facilities, and runways.

Photo Credit: ASHRAF SHAZLY/AFP/Getty Images

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