Sudanese president Omar al-Bashir
In May, Mr al-Bashir visited both countries where, despite an ICC warrant, he was not apprehended.
The same thing happened in Pretoria last year when he attended an African Union summit and was allowed to fly home.
Member countries of the ICC are obliged to detain any person under warrant from the Hague and hand them over for trial.
But, like South Africa, Uganda and Djibouti refused to comply.
The matter is sensitive because the United States maintains its only African military base at Camp Lemonier in Djibouti. In May, a US delegation walked out at the inauguration of Yoweri Museveni in Kampala because of the Sudanese leader’s presence in the room. But Washington’s envoy sat through a similar ceremony the same month when al-Bashir attended the swearing in of Djibouti’s president Ismaïl Guelleh.
And Djibouti is especially at risk from spotlight at the ICC. Among member states, it has one of the worst records on human rights with reports of torture, murder and a charge that this year’s election was rigged. In April Mr Guelleh was returned with 87 per cent of the vote, but opposition groups say their leaders have been forced underground or to exile.
What seems clear from the ruling on Djibouti and Uganda is an ICC no longer willing to see its authority undermined.
And while the Court has its detractors, human-rights groups have hailed its new stance.
“The reasons why we supported the establishment of a permanent court have not changed,” says Stella Ndirangu from the International Commission of Jurists in Kenya. “The only thing that has changed is that now leaders are being held to account.”
Mr al-Bashir is accused of genocide and crimes against humanity in Dafur where more than 300 000 civilians are alleged to have been murdered. In 2009 the ICC issued a warrant for his arrest with a second the following year.
But this takes the Court into unchartered territory. Only member states are subject to its authority and some with a poor human rights record including Cuba, Sudan and Zimbabwe have refused to join.
However, the Security Council can refer any matter to the ICC and this was how al-Bashir was served with a global warrant.
Since its inception in 2002, the Court has pushed the boundaries of power, and Dr Wolf Stainer, a professor of international law who has worked at the Hague told The Zimbabwean the latest move has implications.
“The Court is cracking a whip not just on its members to uphold a warrant, but also on countries like Sudan where it seems determined to see Mr Al Bashir in the dock,” he said.
“This takes the ICC well past what was envisaged when it was set up, and should send a tremor among the world’s dictators. In 2016, no one is beyond the grasp of justice.”
Zimbabwe activists have long called for an enquiry into the Gukurahundi genocide between 1983 and ’87 where up to 40 000 amaNdebele are believed to have died. Recent events have added to the toll of abuse, including allegations of torture and beatings by police in the past week.
But opinion has been that Gukurahundi was too long ago and, as a sitting head of state, President Mugabe cannot be called to account.
In May the former president of Chad, Hissène Habré (73) was sentenced to life imprisonment for the murder of 40,000 of his people in the 1980s. He was overthrown in 1990, but a special court in Senegal brought him to trial.
The jailing of Habré set a precedent that anyone can be brought to book decades after they have left office and the warrant on Mr al-Bashir means sitting heads of state are no longer beyond the law.
Pursuit of Nazi war criminals has further shown that age is no protection with some of the accused put on trial in their 90s.
Uganda and Djibouti have yet to respond to the ICC’s latest move, but the court is unlikely to give way and Mr Guelleh may find his own regime under scrutiny.
No one is safe says Dr Steiner. “We are reaching a stage where crimes against humanity simply won’t go away. Commit these acts and somewhere, some day, you will be caught.”
Post published in: Africa News