The world’s only President-at-large, Sudan’s Omar al-Bashir, will today be feeling the heat from international lawmakers in New York. Repeated failure by states to arrest Bashir on their soil has prompted International Criminal Court (ICC) judges to refer the issue to the UN Security Council (UNSC).

By Richard Walker in Hilversum

The ICC first referred Malawi to the UNSC on Monday for its failure to arrest Bashir when he visited in October. Then on Tuesday it referred Chad to the same organ with the same complaint, based on that country’s failure to arrest the Sudanese leader on a visit in August.

ICC judges now want the Security Council to act to prevent countries in the future from flouting its arrest warrants. ICC state parties are under a legal obligation to enforce such warrants but Chad, Malawi, Djibouti, and Kenya have all failed to arrest the Sudanese leader while on their territory in the past two years.

Bashir is wanted by the ICC, for crimes against humanity and genocide committed in Sudan’s Darfur province.

The African Union is opposed to arresting Bashir, who it says is immune from prosecution under customary law, as a head of state. On Monday, ICC judges declared illegal an African Union resolution requesting its member states not to cooperate in the apprehension of Bashir.

ICC teeth or gums?

The nearest the ICC has to an instrument to enforce its arrest warrants is a referral of recalcitrant states to the UNSC. This has now happened, but it is unlikely sanctions will be imposed. “The message of this decision is – ICC judges are not willing to tolerate member states not living up to their expectations. This is a legal message", says international law lecturer Dr. Michael Vagias from The Hague University. "The practical message to Bashir is – do not travel to other states”.

Bashir openly flouts the ICC’s arrest warrant for him by travelling to countries that will host him. Without a deterrent, says Dr. Michael Vagias, “there is effectively very little that can be done…. The legal arguments used for not arresting him are merely fig leaves.... The UN Security Council needs to send a text message to all the leaders in the world saying next time you see this person, arrest him. Because apparantly only the ICC saying it does not seem to be effective”.

Bad image

The UN and the ICC both suffer from image problems in Africa. Inconveniently true are Omar al-Bashir's visits to the Arabic states of Qatar and Saudi Arabia since the ICC issued his arrest warrant in March 2009. He was in Qatar just last week. When the UNSC considers what action to take over the ICC referrals of Malawi and Chad, it may want to consider how much it risks reinforcing the idea that it cajoles and coerces only poor African states.