The relationship between the United Nations Security Council and the International Criminal Court (ICC) continues to deteriorate, with the latest tensions arising over Sudan's failure to arrest its president, Omar Hassan al-Bashir, who has been wanted since 2009 on charges of genocide in Darfur.
ICC prosecutor Fatou Bensouda has written to the security council at least eight times during those six years asking for its unequivocal backing for the arrest, but Sudan's close ties to Russia and China, two permanent members of the council, have ensured that any action is vetoed.
Ironically, it was the security council itself that originally asked the court in 2005 to open a criminal investigation into Sudan’s allegedly genocidal campaign against the people of Darfur, which has left 400,000 dead and 2.5 million displaced. Another 100 die every day, according to estimates.
As a result of that investigation, the court indicted Bashir – who took power in Sudan in a military coup in 1989 – along with his defence minister and two other associates. All three were charged with genocide, crimes against humanity and war crimes.
The problem is not just that Sudan has failed to arrest Bashir, but that he has been able to travel abroad frequently, including to Egypt, Nigeria, Libya, Chad and Qatar, without being detained – much to the frustration and embarrassment of the ICC, which has pledged to combat impunity.
Obligation to co-operate
Sudan is not a party to the Rome Statute, which set up the ICC, and as a result claims it is not obliged to execute the warrant from its judges. However, in international legal terms, security council resolution 1593
should
oblige
Khartoum
and other capitals to co-operate. It simply doesn’t.
The ICC’s frustration has been mounting, especially with the ignominious collapse last December, due to lack of evidence, of its other high-profile case, against Kenya’s president, Uhuru Kenyatta – described by Bensouda as “a dark day for international criminal justice”.
Just a few days later, in her twice-annual report in person to the security council, the prosecutor told its members that she had also been forced to “suspend” the Darfur investigation, chiding them that she needed to see “a dramatic shift” in their attitude towards arresting Bashir.
Without that shift, she told them scathingly, “I will have little or nothing to report to you on this case for the foreseeable future.”
There has been no such shift. And now the ICC judges in the Bashir case have rowed in behind the prosecutor and formally requested the security council to take whatever measures “it deems appropriate” to ensure compliance by Sudan.
In their briefing to the council, they found that Sudan had “failed to co-operate with the court by constantly refusing to engage in any sort of dialogue with the responsible organs of the court over the past six years or to execute the pending requests for the arrest and surrender” of the president.
Sanctions unlikely
The judges’ chamber did not specify what sanctions the council might apply against Sudan – and as a result it remains unclear whether any action will follow at all. Probably none.
What is becoming increasingly clear, however, is that the relationship between the ICC and the security council is becoming more difficult the more the council refuses to stand behind it in landmark cases such as those against presidents Kenyatta and Bashir.
The unpalatable truth, however, may be even worse for the ICC – due to move into its first permanent headquarters later this year.
That truth suggests that without reform of the security council, and particularly of the circumstances in which a veto can be applied, cases of geopolitical importance at the ICC will always be compromised.
“My reading of what happened in December and more recently is that the prosecutor’s office is trying to fix blame squarely on the security council for its failure to back the court up,” said Richard Dicker, director of the international justice programme at Human Rights Watch.
Elusive convictions
Michael Ignatieff
of the Harvard Kennedy School goes further.
“Let’s be clear: without political backing at the highest level, no international prosecutor can secure a conviction against a sitting head of state.”
In both legal and moral terms, that is arguably an untenable situation for the ICC.
