FOR: DR. KJELL ANDERSON, NIOD
The International Criminal Court’s
fight against impunity
in Sudan
Tara Maria Schoemaker Student number: 10858172
tara.schoemaker@students.uva.nl
Thesis Supervisor: Dr. Kjell Anderson
29 August 2015
Table of contents
Introduction
2
1. The UN Security Council
15
2. State Cooperation
29
3. The Politics of Impunity
49
Conclusion
65
Bibliography
76
The Conflict in Darfur
The fall of the Berlin Wall and the demise of the Soviet Union prompted President George H. Bush in 1991 to declare a ‘new world order’ of international peace, in which security and respect for human rights presumably reigned. Concurrently, in 1989 one of modern history’s most brutal regimes staged a military coup bringing Brigadier General Omar Hassan Ahmed al-Bashir into power in Sudan.1 It would be the beginning of numerous violent conflicts instigated by President Al-Bashir, ranging from leading a brutal jihad in the Nuba Mountains in the late 1980s, which cost as many as half a million lives, to setting the stage for genocide in Darfur through years of abuses by government security forces and government armed militias.
Of these armed militias the Janjaweed are by far the best known, and feared, for their brutality. These Arab militias, who are taking orders from and are being supported by the Khartoum government, are manned by individuals not only from Sudan, but also from neighboring Chad and Libya. They were organized and orchestrated by the National Islamic Front (NIF) regime in the late 1980s to the mid 1990s when they began the genocide in Darfur against Masalit and Fur villages in earnest.2 Rape, torture, and mass killings of civilians are
frequent tactics and their egregious violence and destruction initiated a mass exodus of non-Arab civilians from Western Sudan, eventually producing a population of refugees and internally displaced persons numbering in the millions.3
After his appointment as president of Sudan Al-Bashir ‘Islamicized’ the state and instituted Sharia (strict adherence to Islamic religious law). The southern-based Sudan People’s Liberation Army (SPLA) had begun fighting the Sudanese government from 1983 onwards in an effort to establish a secular democracy. The movement, based in southern Sudan and led by John Garang, saw itself as a movement representing all oppressed Sudan citizens. In return, the Sudanese government undertook a brutal war to suppress southern Sudan. This meant the beginning of the Second Civil War that would last until 2005. The civil
1
E. Mendes, Peace and justice at the International Criminal Court: a court of last resort (Gheltenham: 2010) 61.
2
Idem, 71.
3
A. F. Gryzb, ‘Introduction: The international response to Darfur’, The World and Darfur: international response to
war became increasingly violent as time passed, especially when General Al-Bashir appointed himself as president, prime minister, and chief of the armed forces in 1989.
It took until 2002 to get a peace process started. Negotiations began when Al-Bashir agreed to meet with Garang in July 2002. The negotiations dragged on for another 28 months before a provisional agreement was signed in May 2004. The Comprehensive Peace
Agreement (CPA) that followed was signed on January 9, 2005, and resulted in the formation of a power-sharing government that same year. The (Western) international community was relieved, and perhaps even proud of this presupposed solution. They believed their failure to intervene had contributed to the establishment of peace. The CPA had distracted many African and Western mediators from the brutal campaign that was being led by the
Government of Sudan (GoS) against the people of Darfur. All these actors were unwittingly willing to sacrifice the people of Darfur for an illusory peace in the south.4
Darfur had been in a state of humanitarian emergency since 2003. On February 26 of that same year, Darfuri rebels took up arms and attacked the town of Golo in response to the marginalization of the region’s black African ethnic groups – a moment often referred to as the beginning of the conflict.5 Scholars disagree over the causes of the Darfur crisis, varying
from early colonial policies6 to global warming and its resulting drought7 and Arab versus Islam related political conflicts.8 The analysis of the latter is often used by Western media to
substitute the varying causes of the conflict for the misconception that Darfur’s conflict is a battle between two opposing religious groups. A problematic politicization is its result as this simplification does not begin to describe the reality on the ground. What all scholars observe, however, is that an unequal distribution of wealth and wrought power-relations were at the basis of its outbreak.
What caused the crisis is not the only scholarly debated topic, as (exact) numbers are hard to obtain, and widely ranging. Estimates put the median number of deaths at 400,000, to which one must add at least 2.5 million displaced Darfuris.9 Many of those now reside in
4
Mendes, 78.
5
Bashir Watch, last viewed on 3 March 2015. <bashirwatch.org>
6
See: M. Hill, ‘Tragedy in Darfur: unraveling the real causes’, Freedom Socialist Party, December 2006.
7
See: S. Faris, ‘The real roots of Darfur’, Atlantic Monthly 299.3 (2007).
8
See: E. Wax, ‘5 Truths About Darfur’, The Washington Post, 23 April 2006.
9
‘Genocide in Darfur’, United Human Rights Council, last accessed on: 16 June 2015. <http://www.unitedhumanrights.org/genocide/genocide-in-sudan.htm>
refugee camps across the border in Chad. What is agreed upon by scholars is the astonishing degree and variation of violence that dominates the region. Especially when the Janjaweed entered the conflict, the rape of women and young girls began to be reported at a staggering rate. The various reports that have investigated the ongoing attacks on civilians, which will be discussed below, testify not only to these brutal acts but also to the crisis that plagues Darfur in general.
Throughout 2004 violence in Darfur increased. As the world’s collective attention in 2005 was on the CPA, which was signed between South Sudan and the GoS, the first peace agreement involving Darfur was on its way. In 2006 a Darfur Peace Agreement (DPA) was drawn up between the GoS and the rebel group Sudan Liberation Movement (SLM). However, a rival faction of the SPLA and the smaller Justice and Equality Movement (JEM) rejected it10, which resulted in a continuation of the conflict. In February 2010, the DPA was
revived, and the GoS and the JEM signed a ceasefire agreement with the long-term goal of safeguarding peace. Further negotiations were boycotted by the JEM, though, after accusing the Sudanese army of launching raids and air strikes against a village, which was in violation of the agreement. In 2011 the international community’s attention was once again riveted on the South of Sudan and its upcoming referendum. On July 9 South Sudan gained
independence.
In the meantime, violence in Darfur never stopped. In March 2014 Amnesty International reported that “Sudan faced a toxic combination of rising inflation, unemployment and competition over land and resources which led to hostility among communities”11 since South Sudan gained independence. Increased fighting between different Arab tribes over land and resources is one of the results. An article from the Guardian, on January 16, 2015, reported that, “[t]he Janjaweed, now reincarnated as the Rapid Support Force (RSF), has also perpetrated ground attacks coordinated with aerial bombardment by the Sudanese air force.”12 Ahmed H. Adam here draws the attention of the
West to the fact that, while it focuses on Islamic State and Boko Haram, “forces loyal to
10
G. Kessler, ‘Sudanese, Rebels Sign Peace Plan For Darfur’, The Washington Post, 6 May, 2006.
11
M. Tran, ‘Darfur conflict: civilians deliberately targeted as tribal violence escalates’, The Guardian, 14 March, 2014.
12
Khartoum are mounting a renewed campaign of violence in Darfur.”13 Whereas before the politics of intervention focused on peace versus justice, it now focuses on which conflict cries out for help the loudest.
The Politics of Darfur
At first sight the violence in Darfur appears to be perpetrated by two groups, one against the other: Arabs in conflict with non-Arabs. The simplified version of the conflict identifies the north as ‘Arab’ and Muslim and the south as ‘African’. The three tribes that are ‘genocidal’ targets are non-Arab African tribes, the Fur, Masalit and Zaghawa. These tribes are often described as ‘the black Africans of Darfur’. But is the situation in Darfur really that uncomplicated? Are ethnic relations the cause of this conflict? According to Mahmood Mamdani, this “depoliticization, naturalization and ultimately demonization of the notion ‘Arab’, as against ‘African,’ has been one of the deadliest effects” of activists’ campaigns, such as Save Darfur. 14 These simplistic dichotomies tie in with the global politics of the time – the post 9/11 world. These politics of fear and anti-Arabism testify to America’s use of the demonization of Arabs as legitimization of its ‘War on Terror’.
Biological differences among Darfur’s populations are hard to establish as much intermarriage has occurred over the years, and ethnic adoption and change is variable. It also changes “subsequent to changes in economic behavior.”15 Another view is that the conflict can be explained along the lines of pastoral nomads against peasants, as Lawrence A. Kuznar and Robert Sedlmeyer have done. The majority of pastoral nomads claim Arab descent and created an alliance with the Khartoum government and the Janjaweed, while the majority of peasants claim indigenous African affiliation and are allied with the SPLA.16 Kuznar and
Sedlmeyer argue that the grossness of the violence that arose in Sudan has led analysts to forget the grass roots of the conflict – and instead have shifted the blame to Sudanese politics
13
Ibidem.
14
M. Mamdani, ‘The Politics of Naming: Genocide, Civil War, Insurgency’, Darfur and the crisis of governance in
Sudan. A critical reader. (Cornell: 2009) 150.
15
As quoted in: L. A. Kuznar and R. Seldmeyer, ‘Collective Violence in Darfur: An Agent-Based Model of Pastoral Nomad/Sedentary Peasant Interaction’, Mathematical Anthropology and Cultural Theory: An International Journal 1 (2005) 4-5.
16
Kuznar and Sedlmeyer, ‘Collective Violence in Darfur: An Agent-Based Model of Pastoral Nomad/Sedentary Peasant Interaction’, 6.
and Islamic fundamentalism.17 Needless to say, they do not wish to diminish government responsibility, but they state that a policy change will not stop this conflict.
The analysis made above ties in with the idea that national policies and politics correlate with increased local tensions. As the violence in Darfur escalated, government leaders in Khartoum backed local Arabs which increased their power and their ability to marginalize black Africans. As Scott Strauss concludes, “the ethnic divisions have a history – the conflict is not one of ‘ancient hatreds’ but, rather, one, whereby particular conditions and influences increased the salience of ethnicity and intensified tensions between groups.”18
Although in Sudan much of the country is split between northern Arab Muslims and southern black Christians and animists, Darfur does not fit that description. They are uniformly Muslim and Arabs and Africans live in relative proximity.
These observations make the designation of the conflict in Darfur as genocide problematic. The discussion herein is ongoing, because designating a violent conflict genocide has proven to have far reaching (political) implications. When in the summer of 2004 Colin Powell declared genocide to be happening in Darfur many hoped a policy of intervention would arise. The result was disappointing. Even though attention was called to the world’s failure to prevent genocide in Rwanda only ten years earlier, it appeared the same inaction as met Rwanda would preside in regard to Darfur. As Amanda Gryzb queried: has the international community failed in its duty to protect innocent civilians, just as it did in Rwanda in 1994?19
The Response to Darfur
In September 2004 the United States, following an investigation conducted by the U.S. government in Darfuri refugee camps in Chad, declared that Sudan had perpetrated, and was still perpetrating, genocide against the black Africans of Darfur. US Secretary of State
17
Ibidem.
18
S. Strauss, ‘Rwanda and Darfur: A Comparative Analysis’, Genocide Studies and Prevention: An International
Journal 1 (2006) 45.
19
Powell directly blamed the Sudanese government and stated that the violence committed was a coordinated effort20, hinting at the necessary intent provided by the Genocide
Convention. The U.S. now had an obligation under international law to act and it was expected to press the UN to set up an international commission.21 Moreover, the preferred
action would be to expand an African Union monitoring force that was already present in Darfur.
Finally, Resolution 1556, under the Security Council’s more robust Chapter VII mandate, deemed the carnage in Darfur a threat to international peace and security. It was issued on July 30, 2004, and demanded that the Government of Sudan fulfill its commitments to “disarm the Janjaweed militias and apprehend and bring to justice Janjaweed leaders.”22
After the thirty days deadline had passed, the Security Council issued another Resolution, 1564.23 Far from restraining the militias, the Sudanese government was continuing to provide
military support for their terrorizing campaign and was doing what it could to cover up evidence of what was happening.24 The only concrete outcome of this otherwise futile
resolution was the establishment of an International Commission of Inquiry (ICI), as the U.S. and the United Kingdom had pressured, which was to ascertain whether the human rights abuses in Darfur constituted genocide.
The report made by this commission, which was published on January 25, 2005, concluded that the Sudanese government had “not pursued a policy of genocide.”25 There
was no conclusive evidence that Sudan’s leaders intended to destroy the black African population. The Commission did recommend that the situation in Darfur be referred by the Security Council (SC) to the International Criminal Court (ICC) as it confirmed serious violations of international human rights law and humanitarian law by all parties are continuing.26 It also proposed that the names of fifty-one individual perpetrators be the
subject of investigation by the chief prosecutor of the ICC for possible indictments.27 In
20
E. MacAskill, ‘Stakes rise as US declares Darfur killings genocide, The Guardian, 10 September 2004.
21 US’ involvement will be further discussed in Chapter 3.
22
S/RES/1556 (30 July 2004) <http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1556(2004)>
23
United Nations Security Council, Resolution 1564 (2004), 18 September, 2004. <http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1564(2004)>
24
D. Clark, ‘In Darfur, the UN veto is proving as deadly as the gun’, The Guardian, 14 August 2004.
25
International Commission of Inquiry, Report of the International Commission of Inquiry on Darfur to the United
Nations Secretary-General, 25 January, 2005. <http://www.un.org/news/dh/sudan/com_inq_darfur.pdf>
26
Ibidem.
27
March 2005 Security Council Resolution 1593 referred Sudan to the ICC28, which gave the court jurisdiction over international crimes committed in Sudan and obligated the state to cooperate with the ICC.
The involvement of the International Criminal Court
The referral of the case of Sudan to the ICC brought the conflict in Darfur back to international attention. On May 2, 2007, the court issued multiple arrest warrants for Ahmad Harun, the minister of the interior and head of security in Darfur, and a militia leader, Ali Abd al-Rahman alias Ali Kushayb. They were accused of having “played lead roles in joint army and militia attacks on four villages in West Darfur in 2003 and 2004, where hundreds of civilians were executed.”29 The Sudanese government immediately refused to hand them over to the ICC and instead asserted that it did not recognize the jurisdiction of the court. In reply, Luis Moreno Ocampo insisted that, given the referral by the Security Council of the situation in Darfur to the court, the Khartoum government still had an obligation to do so, to which they responded that it would be able to try all the perpetrators of any offences in Darfur in its own courts.30
As human rights groups applauded the action, the Khartoum government continued to abuse its power to mock the ICC’s attempt to put a stop to the conflict in Darfur. One of their first ‘retaliating’ acts was the appointment of Harun as Minister of Humanitarian Affairs, whose jurisdiction included the supervision of the refugee camps in Darfur. This meant that he would be responsible for “the same approximately 2 million people he had terrorized and whose families his government forces and militia proxies had slaughtered.”31 A year later and more than three years after the referral of the situation in Sudan to the ICC, Moreno Ocampo accused Al-Bashir of having committed genocide, crimes against humanity, and war crimes, claiming that he was personally responsible for the displacement, killings, and rapes against civilians in Darfur over the past five years. On 4 March, 2009, Al-Bashir became the first sitting president to be indicted by the ICC.
28
United Nations Security Council, Resolution 1593, 31 March, 2005. <http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1593(2005)>
29 X. Rice, ‘ICC issues Darfur arrest warrants’, The Guardian, 2 May 2007.
30
Mendes, 58.
31
The court issued an arrest warrant for Al-Bashir on counts of war crimes and crimes against humanity, considering that there is “reasonable ground to believe Omar Al-Bashir is criminally responsible as an indirect perpetrator, or as an indirect co-perpetrator.”32 When the ICC issued its arrest warrant for Al-Bashir it knew it would be highly unlikely to count on the cooperation of Sudan. The reactions of the international community were mixed. Most human rights groups were positive and highlighted the implications of recognition, as did Human Rights Groups International Justice Program senior counsel Elise Keppler, who stated: “Today’s decision is a strong reminder that President Al-Bashir is wanted for heinous crimes committed in Darfur.”33 Longstanding critic of the ICC Alex de Waal saw the
downside of this public action: “The arrest warrant is an immense gamble, which has the potential to set back the cause of peace and democracy in Sudan, and is unlikely to advance the cause of justice and human rights.”34
The ICC is lauded for taking action and its efforts were seen as a step forward in the fight against impunity and in the search for justice. However, the ICC, and Moreno Ocampo in particular, has also been criticized for its strategy. In 2014 Chief Prosecutor Fatou
Bensouda announced that she was shelving the Darfur probe, which means the ICC formally suspended the war crimes investigations in Sudan. It is no secret that Al-Bashir is still ruling Sudan today. What is more, on the 5th of February 2014 the Foreign Minister of Sudan and a
top advisor to Al-Bashir were welcomed by the Obama Administration to attend a
commemoration of the Armenian genocide at the National Prayer Breakfast.35 What steps
have been taken, and what progress has been made, since the ICC’s arrest warrants were issued in 2009?
Cooperation with the Court
Several states have ignored their international obligations to arrest Al-Bashir. Neighboring country Chad was the first state-member of the ICC that was visited by
Al-32
International Criminal Court, ‘In the case of Prosecutor v. Omar Hassan Ahmad Al Bashir’, Warrant of Arrest for
Omar Hassan Ahmad Al Bashir, 4 March, 2009.
33
‘Darfur: International Criminal Court’s Decision on Bashir Arrest Warrant’, Human Rights Watch, 3 February 2010.
34
A. de Waal, ‘The case against prosecution of president Omar al-Bashir by the International Criminal Court’,
Genocide Studies and Prevention 4 (2009) 1.
35
Bashir. On July 22, 2010, Al-Bashir attended a meeting of the Community of Sahel-Saharan States that was being held in N’djamena. He was “given a symbolic key to the city” when he was met at the airport of the Chadian capital by President Idriss Deby.36 Ahead of the meeting several human rights groups had called on Chad to arrest Al-Bashir. However, Chad’s interior and security minister Ahmat Mahamat Bachir stated they were not obliged to arrest Al-Bashir since he is a sitting president.37 This ‘excuse’ is not valid on the grounds of Article 27 of the Rome Statute, which states that “[i]n particular, official capacity as a Head of State or Government, a member of a Government of parliament … shall in no case exempt a person from criminal responsibility under this Statute.” By depositing its instrument of ratification to the Rome Statute in 2006, and when on 1st January 2007 the Rome Statute
entered into force, Chad lost its legal right to oppose Al-Bashir’s indictment.
A month later, Al-Bashir visited Kenya to witness the signing of its new constitution. In May 2011 he visited Djibouti and in October of that year he was welcomed by a military guard of honor of Malawi to attend a heads of summit of the Common Market for Eastern and Southern Africa (COMESA), a regional trade block. In July 2013 Al-Bashir attended a health summit in Nigeria and in February 2014 he arrived in the Democratic Republic of Congo. Most welcoming state-members defended their failure to arrest Al-Bashir by either pointing at the risk of adversely affecting the peace in Sudan38 or by claiming it is simply
none of their business.39 All of these countries are members of the ICC – and all of them are members of the African Union. Does the one have to do with the other?
Regional organizations are important political agents as they can mobilize broad support.40 Chad’s inaction adheres to the more general standpoint as taken by the African Union (AU). The AU, consisting out of 54 African States, was established on 26 May 2001 and launched to replace the Organisation of the African Unity (OAU). It became actively
involved in the ongoing conflict in Darfur when in 2004 the African Union Mission in Sudan (AMIS) was founded. This mission, with forces increased to about 7,000 in 2005, has been an
36
X. Rice, ‘Chad refuses to arrest Omar al-Bashir on genocide charges’, The Guardian, 22 July 2010.
37
Ibidem.
38
Associated Press in Nairobi, ‘Kenya defends failure to arrest Sudan’s president Omar al-Bashir in Nairobi’, The
Guardian, 29 August 2010.
39 ‘Sudan’s Omar al-Bashir in Malawi: ICC wants answers’, BBC, 20 October 2011.
40
J. Giroux, D. Lanz and D. Squaitamatti, ‘The tormented triangle: the regionalization of conflict in Sudan, Chad and the Central African Republic’, Crisis States Working Papers Series No. 2 (2009) 16.
admitted failure due to being under-funded, under-manned, and having a weak mandate.41 In July 2006 at a summit in Gambia, the AU also admitted that they were not able to
“adequately protect the two million people who have fled their homes in Darfur.”42
Immediately after the ICC’s indictment in 2009 the AU expressed its contempt for the arrest warrant of Al-Bashir claiming it was not the best solution to the problems in the troubled area. Although it acknowledged the gross violations of human rights in Darfur, AU special envoy to the Darfur region Salim Ahmed Salim said that as long as Al-Bashir
remained president, the Western world should agree to negotiate with him to ensure that peace was restored.43 Considering the ongoing conflict in Darfur at the time, this appears to be a valid argument. The AU’s reaction to the indictment can be put in the context of the division between the ICC and the AU, which started after the ICC initiated the process that led to the issuing of an arrest warrant against Al-Bashir.
On 3 July, 2009, the AU put word to deed when it adopted a decision which stated that African states would not cooperate with the ICC in the execution of arrest warrants issued against Al-Bashir.44 This decision, which vitally undermined the ICC’s authority,
placed African states who were also members of the ICC in the unenviable position of having to choose between two legal obligations: one to the AU and one to the ICC. The pressure put on Chad by the AU to comply with its decision could have easily been expanded through threats of economic sanctions. However, Chad was neither forcefully pressured by the SC to fully cooperate with the court and one could argue their optional sanctions are even more powerful. Chad should never have been able to violate its obligation under international law – certainly not repetitively over the years.
No impunity without significant action
The SC’s follow up after its referral is one of the central themes of this thesis. I will be investigating the reasons for putting aside the case of Sudan, as was done by the ICC in 2014.
41
X. Rice, ‘Sudan rejects UN peacekeepers for Darfur’, The Guardian, 3 July 2006.
42
Ibidem.
43
A. Mulowa, ‘Sudan: Al-Bashir Indictment is No Solution, Says AU Envoy’, allAfrica, 20 July 2009.
44
Tladi, ‘The African Union and the International Criminal Court: The battle for the soul of international law’,
How could a case that involved an ongoing conflict be shelved? How did regional political interests both strengthen Al-Bashir’s position of power and weaken the ICC’s attempt to prosecute his crimes against humanity? What are the consequences of this ‘failure’ for the functioning of the ICC and its position within the landscape of global politics and its demand for justice? All of these questions will be addressed as I analyze the course of action that has been taken by various actors of the international community since the outbreak of the crisis in Darfur.
The second chapter will describe the role of the United Nations Security Council. Because the Sudan situation was referred to the court by the Security Council, the latter has the power to impose sanctions on a member state that fails to comply with the court’s requests. For instance, Chad’s non-cooperation was referred to the Security Council on August 27, 2010.45 Has the SC implemented sanctions on Chad? Did their non-cooperation
have any other negative consequences? In this chapter I will argue that the internal politics of the Security Council led them to neglect to adequately follow up on their own referral of 2005. It ignored its responsibility by leaving the ICC in charge of the case of Sudan, while it should have known that the ICC does not have enough power to ensure cooperation.
The third chapter elaborates on the ICC’s options in pursuing the arrest warrant for Al-Bashir. The most important power mechanism is the obligation of member states to cooperate with the ICC. However, Gwen P. Barnes, in highlighting the portions of the Rome Statute that leave the ICC vulnerable to member states that violate its conditions, argues that there is no clear punishment stipulated for a violation: “If a member state does not cooperate, however, the Rome Statute does not contain a specific repercussion for the offending
member.”46 Another feature of this ineffective cooperation with the ICC is, as mentioned
above, the battle between the ICC and the African Union. I will discuss the legitimacy of this opposition and its negative consequences for the functioning of the court. The case of Darfur will in this section serve as an example of how the political conflict between both institutions leads to inaction in the fights against impunity.
45
International Criminal Court, ‘Pre-Trial Chamber I’, Decision informing the United Nations Security Council and the
Assembly of the States Parties to the Rome Statute about Omar Al-Bashir’s recent visit to the Republic of Chad, 27 August
2010. <http://www.icc-cpi.int/iccdocs/doc/doc931075.pdf>
46
G. P. Barnes, ‘The International Criminal Court’s Ineffective Enforcement Mechanisms: The Indictment of President Omar Al Bashir’, Fordham International Law Journal 34 (2011) 1593-1594.
In the fourth chapter I will make suggestions for improvement based on the
conviction that the ICC, in its current state, is not able to adequately fight against impunity. It lacks the army force, the power and practical measures to effectively compel their member states with sanctions against breaching international obligations. Taking into account the practical obstacles that will need to be faced (such as the fact that the Assembly of States Parties is the only body that can change the Rome Statute) I argue for implementing the option to enforce (economic) sanctions on state members that fail to meet international obligations. The ICC claims to be a legal institution, objectively fighting against impunity – but is that a realistic goal? Instead of shying away from this responsibility, I argue that the ICC should expand its position as political agent in order to maintain its authority within the international community. By doing so, it will create the power which, as the reality of the case of Darfur has shown, has become a condition to fulfill its mandate.
In my conclusion I will re-iterate one of my main arguments: the international community has failed in its responsibility to protect the people of Darfur. Could this have been prevented? In an attempted answer I will point to the fact that the ICC wishes to step away from the political implications that fighting against impunity brings along. In the case of Sudan this has prevented them from significantly contributing to either peace or justice. An internally weak mandate has contributed to their struggles as the idea that states would be punished for not meeting their obligation would induce the frequency of it happening. Externally speaking the ICC became too dependent on the SC for support, which it never fully received. The Security Council is a political body, which is most painfully shown by the role of both U.S.’ and China’s right to veto relating to the case of Sudan. However, when it refers a case to the ICC it has already taken a (political) stand against injustice – the least it can do is to stand by it. The court is fighting against impunity, which is a fight that will never be fought fairly by its opposing ‘targets’, who are the world’s most vicious perpetrators. In order to change the outcome of these fights, the court must face the reality of diplomatic politics and compromises. It must not shy away from using that reality to their advantage.
The UN Security Council
Introduction
On March 31, 2005, Security Council Resolution 1593 referred the situation in Darfur, Sudan, to the prosecutor of the ICC, which gave the court jurisdiction over international crimes committed in Sudan. It demanded that the Government of Sudan cooperate with and provide any assistance necessary to the court and the prosecutor. It invited the prosecutor “to address the Council … every six months … on actions taken pursuant to this
resolution.”47 These reports attest to the fact that the Security Council neglected to follow up on its referral. The SC’s referral brought Darfur to the centre of attention in international media, whereas until March 2005, as Global Policy Forum states, the rest of the world “remained largely inactive to the horrors in Darfur.”48
One day preceding Resolution 1593, The Guardian reported that “the wider
international community was too slow to react to the Darfur crisis … the response, especially that of the UN Security Council, has been largely ineffective, divided and weak.”49
Governments had failed to speak out and to put concerted pressure on the Sudanese
government to allow humanitarian access or take seriously its responsibilities for protecting the people of Darfur. One could say that the world was watching as if it did not really care, or as if it did not wish to realize the action that such care would demand.
The referral by the Security Council was unprecedented in history since it was issued while the conflict in Darfur was ongoing. It was an opportunity for the court to show that it can indeed have a significant impact on ongoing conflicts but it also made the peace versus justice debate more complicated. It placed the institution in a position in which, through its involvement, it could risk the chance of worsening the conflict or delaying, or even
damaging, the peace process. By having to take action at this point, the ICC’s considerations were shifted towards decreasing the violence of the conflict. Ideally, the court’s actions would contribute to its ending. The reality of the balancing act between both of these outcomes will be discussed in this chapter.
The main argument is that the cooperation between the SC and the ICC has been inadequate to achieve the goals they had set up regarding the situation in Darfur. In the first section I will address the follow-up that was (not) given by the SC up until 2014. Even though Moreno Ocampo repeatedly asked the Security Council to send a strong message to the Government of Sudan and regional states requesting cooperation and compliance, the SC did not put enough pressure on any of these states to do so. The second section will make use of the case study of Libya. In 2011 UNSC Resolution 1970, which was unanimously
47
S/RES/1593 (31 March 2005).
48
‘International Criminal Court Investigations Sudan’, Global Policy Forum.
<https://www.globalpolicy.org/international-justice/the-international-criminal-court/icc-investigations/darfur-sudan.html>
49
adopted, granted the court jurisdiction over the situation in Libya. Following this resolution the SC undertook various actions to resolve the conflict. I will argue that the cooperation between the SC and the ICC appears to be largely dependent on political factors and the world’s biggest power’s right to veto. In the section ‘Timing is a strategic decision’ I will return to the debate between peace and justice. The discussion on the preferred role of the ICC, the choice between post and in-conflict justice, has been greatly influenced by the SC’s referral. In conclusion I will argue that timing is crucial – not only in indictments and arrest warrants issued by the ICC, but also in when to refer cases to the court.
Inadequate referral
The referral by the Security Council was a sign to start cooperation with the court. It was a political decision and a way for the SC to take a stand. They sent a message to the world: getting the ICC involved could help stop the conflict of Darfur. By sending out that message to the international community all eyes were on the ICC. Consequently, a lot of extra pressure was put on the institution. The ICC therefore had expected the SC to back them on their decisions and on their proceedings. The court justifiably expected that it was to become a co-operation between two powerful institutions in their fight to end impunity in Sudan. This section challenges that expectation by arguing that it seems as though the SC thought it could ‘easily’ delegate its international responsibility to establish peace and security in Darfur to the court.
The cooperation between both institutions was to be established further via what Moreno Ocampo, in name of the court, would report every six months to the Security Council. In the very first of those reports Moreno Ocampo urges that “[t]he language of Resolution 1593 must be converted into a reality as soon as possible. Continued reporting and engagement of the Security Council on these matters will be vital.”50 Philipp Kastner concludes that “[t]he briefings by the Prosecutor to the Security Council, carried out every six months, did not result in any action supportive of the judicial institution, which would have
50 International Criminal Court, Statement of the Prosecutor of the International Criminal Court, Mr. Luis Moreno
Ocampo, to the UN Security Council pursuant to UNSCR 1593, 29 June 2005, available at:
been necessary to enforce the decisions of the ICC, to ensure cooperation of the Sudanese government and to have therefore a credible impact.”51
In the first report, of June 29, 2005, Moreno Ocampo states that “[t]he full support of the international community will be essential to carry out our investigation.”52 He did not
only address the SC with this; he expected human rights organizations, member states of the ICC, the African Union and of course the Government of Sudan itself to co-operate with the court’s investigations. These actors, such as the AU and the GoS, will be extensively dealt with in following chapters. In the report of June 2006 Moreno Ocampo explains that co-operation of the AU and the GoS are vital to conduct the investigations adequately and says in light of that: “[W]e turn to this Council to assist us in obtaining this and other types of cooperation essential to implementing Resolution 1593.”53
A year later Moreno Ocampo once again urges the SC to “take the lead in calling on the Sudan as the territorial State to arrest the two individuals and ensure their appearance in Court.”54 In April 2007 the court had issued arrest warrants against Ahmad Harun and Ali Kushayb on numerous counts of crimes against humanity and war crimes. Another year later, the court saw an opportunity for the SC to follow up on its duty: “The Office urges the Council … to send a strong and unanimous message to the GoS on the execution of the warrants. The Office regards the June 2008 trip of the UNSC to the Sudan, in this light, as a crucial opportunity.”55
A report from this mission states that it stressed “the importance of the Government’s full cooperation with the International Criminal Court” and “said that the Sudan should hand over the two Sudanese nationals who had been indicted by the court.56 However, it simultaneously reports that the Presidential Adviser stated that “the Sudan would never
51
P. Kastner, International Criminal Justice in bello? The ICC between Law and Politics in Darfur and Northern Uganda (Boston: 2012) 54.
52
International Criminal Court, Statement of the Prosecutor of the International Criminal Court, Mr. Luis Moreno
Ocampo, to the UN Security Council pursuant to UNSCR 1593.
53
International Criminal Court, Statement of the Prosecutor of the International Criminal Court, Mr. Luis Moreno
Ocampo, to the UN Security Council pursuant to UNSCR 1593, 14 June 2006, available at:
http://www.icc-cpi.int/NR/rdonlyres/F69E5562-4BE5-414B-B058-D75E1F7A3B85/0/LMO_20060614_En.pdf.
54
International Criminal Court, Fifth Report of the Prosecutor of the International Criminal Court to the UN Security
Council pursuant to UNSCR 1593, 7 June 2007.
<http://www.icc-cpi.int/NR/rdonlyres/65732689-4A7B-467E-9821-BF53F11465D0/0/OTP_ReportUNSC5Darfur_English.pdf>
55 International Criminal Court, Seventh Report of the Prosecutor of the International Criminal Court to the UN Security
Council pursuant to UNSCR 1593, 5 June 2008.
cooperate with the Court since it was not a signatory to the Rome Statute … the Government had its own functioning judicial system.”57 In return the mission “expressed its
dissatisfaction with the view offered in this regard by the Presidential Adviser.”58 The SC uses diplomatic language to condemn the non-cooperation offered by the GoS. All that is left at the end of their report is a recommendation; no action, no sanctions, merely words.
Moreno Ocampo felt the same way, as he expresses in his report from December 2008, that “[w]hen it comes to Justice, also, only words have been offered.”59
What could be the reason for the Security Council’s inaction? First of all, when the peace negotiations between the North and South of Sudan were ongoing, there was some legitimacy to the reason to not take further action because sanctions could hamper the peace process. Al-Bashir and his government had repeatedly threatened to withdraw from the negotiating table if the court would continue its involvement in Darfur. They hinted that “they would stall the peace process to end Africa’s longest war if the world got tough on Darfur.”60 This led China, Russia, South Africa, Burkina Faso, Libya and Indonesia to argue, in June 2008, that stronger statements from the SC might “spoil the peace effort in Darfur.”61
However, this argument confuses the legal sphere with political strategy.
Another main reason for the SC’s inaction is the alliance that Sudan has with one of the world’s most powerful countries: China. Sudan was counting on China to protect it from any real sanctions from the U.N. because, as Mendes explains, China was “the main supplier of military equipment used by the Sudanese armed forces and perhaps even the Janjaweed against the rebel groups and the civilian populations in Darfur. Secondly … Sudan was providing China with more than two-thirds of China’s overseas oil production.”62 This oil production had seriously contributed to the conflict and the deterioration of the human rights situation in Sudan.
56
United Nations Security Council, Report of the Security Council mission to Djibouti (on Somalia), the Sudan, Chad,
the Democratic Republic of the Congo and Côte d’Ivoire, 31 May to 10 June 2008, 15 July 2008.
<http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2008/460>
57
Ibidem.
58
Ibidem.
59 International Criminal Court, Statement to the United Nations Security Council on the situation in Darfur, the Sudan,
pursuant to UNSCR 1593, 3 December 2008, available at:
http://www.icc-cpi.int/NR/rdonlyres/6C7146E3-F993-4D3F-BA07-B06BAE324BEC/279082/20081203_unsc_statementENG1.pdf.
60
A. de Waal and J. Flint, Darfur: a short history of a long war (London: 2005) 128.
61
Kastner, International Criminal Justice in bello?, 102.
62
Aside from this powerful relationship between China and Sudan, China’s right to veto within the SC made their relationship even more dangerous. Fortunately, for the people of Darfur, China did not use that right to prevent Resolution 1593, and the referral of the case to the ICC, from happening. However, as Kastner puts it “[p]roposals for economic sanctions through a Security Council resolution were unrealistic from the beginning; China would veto any measures that might endanger its heavy investments in the Sudanese oil industry.”63 A similar power-play was at hand between the United States and the ICC. The US preferred a tribunal in Africa to be the mechanism of accountability, but in the end also abstained from voting on Resolution 1593, “once language was introduced into the Resolution that dealt with the sovereignty questions of concern.”64 I will elaborate on their demands in Chapter 4.
Despite these great powers’ hostility the Security Council has implemented some sanctions, since the renewed outbreak of violence in Darfur of 2003. In 2004 an arms embargo came into force by Resolution 1556 which stated that “all states shall take the necessary measures to prevent the sale or supply, to all non-governmental entities and individuals, including the Janjaweed.”65 In April 2006, SC Resolution 1672 named four individuals
allegedly responsible for crimes committed in Darfur and imposed travel sanctions on them, as stipulated in Security Council Resolution 1591.66 Aside from these travel sanctions, further measures were never taken. Once the CPA was signed in 2005 and South-Sudan gained independence in 2011 and the humanitarian crisis in Darfur remained unresolved, the argument of peace over justice was no longer valid. Despite the initial support to the ICC, “the Security Council did not persist in fully backing the efforts to achieve justice for the victims in Darfur. Backing the ICC in the situation of Darfur became politically more and more difficult for Western governments as well as for the United Nations as a whole, which explains why support for the ICC progressively decreased to a somewhat half-hearted and unenthusiastic policy.”67 Was the situation of Darfur that politically complicated or was the SC unwilling to take any political stand?
63
Kastner, ‘The ICC in Darfur – Savior or Spoiler?’, ILSA Journal of International & Comparative Law 14 (2007) 162.
64 J. Elsea, ‘US Policy regarding the ICC’, CRS Report for Congress (August 2006) 25. 65
United Nations Security Council, Resolution 1556, 30 July, 2004.
<http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1556(2004)>
66
The four individuals were from different warring parties, which was an attempt of the SC to appear as impartial as possible.
67
Sanctions: the case study of Libya
To answer that question I will look at a different case that was referred to the ICC by the SC, that of Libya. The conflict started in 2011 with a civil war between forces loyal to Colonel Muammar Al-Qadhafi and those seeking to oust his government. Al-Qadhafi was killed in October and a new civil war broke out in 2014 between four rival organizations seeking to control Libya. For years gross and systematic human rights violations have dominated the country and the civilian population is still being gravely targeted today. On February 26 2011, the SC adopted Resolution 1970 and decided to “refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International
Criminal Court.”68 Since Libya, as Sudan, is not a State Party to the Rome Statute, the referral
provided the basis for ICC jurisdiction over alleged crimes committed in Libya.
Remarkably, this strong resolution was unanimously adopted, which was the first time ever in history that this had happened. All SC-members expressed their solidarity with the people of Libya and expressed the hope that their decisive intervention would help bring them relief. US Ambassador Susan Rice stated in a press conference that she was pleased with “the unity of purpose that the Council has showed in acting quickly and decisively in accordance with its responsibility to protect.”69 In this very resolution the SC implemented
an arms embargo by deciding that “all Member States shall immediately take the necessary measures to prevent the direct or indirect supply, sale, or transfer to the Libyan Arab Jamahiriya.”70 On top of that, a travel ban and assets freeze on the family of Muammar
Al-Qadhafi and certain government officials was imposed. The SC concluded this resolution by affirming that it would be prepared to review the appropriateness of the measures contained. What were the effects of this initial strong position that the SC took?
Libya condemned the resolution publicly. Foreign minister Khaled Kaim said that the court had no jurisdiction over Libyan affairs and suggested it “had a vendetta against African states.”71 Libya is not a signing party to the Rome Statute and adhered to the general position
68
United Nations Security Council, Resolution 1970, 26 February 2011. <http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1970(2011)>
69
The American Non-Governmental Organization Coalition for the International Criminal Court, The Un Security
Council Referral of the Situation in Libya to the International Criminal Court, 22 March 2001. <http://www.amicc.org/docs/Libya_Referral.pdf>
70
S/RES/1970 (26 February 2011).
71
as taken by the African Union. In light of this, Dapo Akande raises an important point: the Security Council, by referring the case of Libya to the ICC, chose to impose on the state the obligation to cooperate fully with the ICC because it granted the court jurisdiction over crimes committed on Libyan territory.72 Once a case is referred, the obligation to cooperate
lies both with the SC and the ICC, which changes the power-situation. As I will discuss in the next chapter, the options that the ICC has to ‘punish’ non-cooperation are significantly less effective than those that would be at the hands of the SC. The SC could therefore more effectively threaten states into cooperating with the court, which indirectly grants the latter more power than they would have in cases of self-referral or initiated proprio motu. For this power to actually come into existence the Council must follow-up on its referral. In the case of Sudan, this never happened.
Regarding Libya, less than a month after Resolution 1970 was issued, the SC took further action by adopting Resolution 1973. Libyan authorities had failed to comply with Resolution 1970 to which the SC responded by demanding “the immediate establishment of a cease-fire” and by deciding to establish “a ban on all flights in the airspace of the Libyan Arab Jamahiriya in order to help protect civilians.”73 This resolution reiterated and
strengthened the arms embargo, travel bans and assets freezes that were laid down by Resolution 1970. More importantly, this resolution allowed an intervention on Libyan territory by states party to the NATO (North Atlantic Treaty Organization). The Arab League had asked for this help, which “set the path for China and Russia – who traditionally oppose foreign intervention in internal disputes – not to veto the Security Council’s resolution.”74
What is more, the US was in favor of military intervention from the beginning75 and Obama’s government used its lobbying power to convince SC members to join in on their
involvement.
Whether or not this intervention actually improved the situation in Libya is not up for debate here, but it is remarkable that such action was taken by the SC whereas inaction has dominated the course in Sudan. The rapidness with which the international community
72 This should be regarded as an obligation to cooperate in accordance with the provisions of the ICC Statute.
Moreover, the same obligation was put on the GoS when the case of Sudan was referred.
73
United Nations Security Council, Resolution 1973, 17 March 2011. <http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1973(2011)>
74
M. Naime, ‘Libya and Resolution 1973: The Law of Politics’, Journal of Strategic Security 5 (2012) 106.
75
decided to intervene in Libya shed an even worse light on their long ‘denial’ of the crisis of Darfur. Let me return to the question that led up to this section: was the situation in Darfur politically that complicated? Not per se, but the world’s biggest powers had something to lose: their own interests were at stake. Regarding the situation in Libya these same powers had something to gain: they wanted to oust Al-Qadaffi. His dictatorship was expanding and his increasing power threatened regional stability in North-Africa. Instability carried risks of oil revenues falling into the ‘wrong’ hands, which affected China’s position within the Council on the case of Libya, as the latter is China’s major oil supplier.76 Moreover, the
U.S.-led campaign against terrorism was the backbone of the Council’s support, as its lobbying had resulted in the broad support that was needed to adopt Resolution 1973.77
Arguably, regional stability was also at stake in Sudan, with Al-Bashir’s government fighting rebel groups from Chad. Still, a military intervention in Sudan would never have passed, because China, Russia and the U.S. would not have allowed it. In the end, the difference between Al-Bashir in Sudan and Al-Qadaffi in Libya is the simple fact that the latter had lost its position of ally. He could no longer serve the world’s biggest powers. In these cases, the right to veto, that so very often brings the SC’s problematic politics to light, became the factor that determined further cooperation with the ICC. The perceived
consensus within the Council on the military intervention in Libya contained the promise of broad international support for further action.
Resolutions 1970 and 1973 were strong but did not bring the court any actual cases; arrests were not performed by any (member) states. At times, the failure of arresting Omar al-Bashir has been cited as an example of the ICC’s impotence and as a reason to believe that the arrest warrant against Muammar Al-Qadaffi would have been ineffective as well. His death leaves no conclusive answer to that predicament. The case against his successor, Saif Al-Islam Gadaffi, has illustrated the problems facing the court regarding SC-referral cases. The court issued an arrest warrant against him on June 27, 2011 on the grounds of two counts of crimes against humanity. He has been in custody of the National Transitional Council (NTC) since November 19, 2011 and remains in detention in Zintan.
76
S. Tisdall, ‘The consensus on intervention in Libya has shattered’, The Guardian 23 March 2011.
77
The NTC refuses to execute the ICC arrest warrant by refusing to surrender him, stating that: “in accordance with the Rome Statute, the Libyan judiciary has primary jurisdiction to try Saif al-Islam Gadaffi and that the Libyan State is willing and able to try him in accordance with Libyan law.”78 In May 2012 the Government of Libya challenged the
admissibility of this case on the principle of complementarity, but a year later Pre-Trial Chamber I rejected this challenge, because it found that Libya was unable to carry out the prosecution of Mr Gadaffi.79 In the sixth report to the UNSC Fatou Bensouda reiterated that
“the compliance of Libya with the Court’s decisions is of paramount importance. The Office therefore strongly encourages Libya to surrender Saif Al-Islam Gadaffi to the Court.”80 Simultaneously, she expressed in a statement to the UNSC that it is “fundamentally important for this Council to equally remind and urge the Libyan government to comply with the decisions of the Chamber.”81
Up until today, Saif Al-Islam Gadaffi has not been surrendered to the court. The government of Libya remains of the opinion that the case is inadmissible and that they are themselves able to prosecute him, or will be in the near future. The Security Council has not effectively urged Libya’s government to cooperate with the court’s mandate. This case has also shown that legal determinations alone are not enough to ensure that the ICC’s decisions will be implemented by states. The need for political will and for diplomatic lobbying is ever present. The prosecutor concluded his first statement to the SC following Resolution 1970 by stating that “[a]rresting those who ordered the commission of crimes will contribute to the protection of civilians in Libya because it will deter ongoing crimes. It will deter crimes by removing those who ordered the crimes, and by sending a serious message to other potential perpetrators, in Libya and other situations, that the international community will not
78
As quoted in: M. Ssenyonjo, ‘The Rise of the African Union Opposition to the International Criminal Court’s Investigations and Prosecutions of African Leaders’, International Criminal Law Review 13 (2013) 402.
79
International Criminal Court, Case Information Sheet. The Prosecutor v. Saif Al-Islam Gadaf, last updated: 26 March 2015. <http://www.icc-cpi.int/iccdocs/PIDS/publications/GaddafiEng.pdf>
80
International Criminal Court, Sixth Report of the Prosecutor of the International Criminal Court to the UN Security
Council pursuant to UNSCR 1970 (2011). <http://www.icc-cpi.int/en_menus/icc/structure%20of%20the
%20court/office%20of%20the%20prosecutor/reports%20and%20statements/statement/Documents/Report%20to %20UNSC%20Nov2013EN.pdf>
81
International Criminal Court, Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, to the
United Nations Security Council on the situation in Libya, pursuant to UNSCR 1970 (2011), 14 November 2013.
<http://www.icc-cpi.int/en_menus/icc/structure%20of%20the%20court/office%20of%20the%20prosecutor/reports %20and%20statements/statement/Pages/Statement-UNSC-Nov2013.aspx>
condone such crimes.”82 Justice as a precondition of peace – does that work?
Timing is a strategic decision
The most debated issue regarding the course of action that was to be taken by the international community was that of peace versus justice. Especially in the beginning of the crisis of Darfur, in the period of 2003 until 2011, the fragile peace process between North and South Sudan often prevented any action from being taken. The Security Council has a
mandate to secure international peace and so does the court, but the latter’s main objective is to bring justice which can only be accomplished if those who are allegedly most responsible are brought to trial. No one can prevent the effect, or outcome, of any measure taken. The situation, or the debate thereof, should have changed when in 2005 peace was thought to have been established in the South of Sudan. Unfortunately, peace-interests still govern this debate; they have only shifted, geographically, from concerning the South to the West of Sudan.
Economic or other sanctions can delay a peace process, while the court’s steps
towards justice could lead to peace, which is one of the reasons why the SC referred the case of Sudan. This argument stems from the observation that the court was asked to ‘intervene’ in a conflict instead of implementing post-conflict justice. What is important is the fact that the court was indeed asked to do this while the conflict was ongoing which means it might not have initiated an investigation on its own because it anticipated the complexity of this situation. It also means that member-states could ‘legitimately’ argue that the court should leave Sudan alone until peace was achieved. At the same time, the court could have used this timing to its advantage by shaming members into action by means of pointing at the state of crisis that was imminent. Resolution 1593 was adopted in March 2005, having determined that the situation in Sudan continued to threaten international peace and security. Through this decision the SC implied that “the activation of the ICC is an appropriate measure to contribute to the restoration or maintenance of international peace and security.”83
82
International Criminal Court, Statement to the United Nations Security Council on the situation in the Libyan Arab
Jamahiriya, pursuant to UNSCR 1970, 4 May 2011.
<http://www.icc-cpi.int/NR/rdonlyres/0BDF4953-B5AB-42E0-AB21-25238F2C2323/0/OTPStatement04052011.pdf>
83
Continuously, the Sudanese government has portrayed the ICC as an obstacle to peace. It has threatened and warned of more violence in Darfur if an arrest warrant were issued. In 2008 African leaders asked the SC to shelve the ICC’s indictment of Al-Bashir, “taking into account the need to ensure that the ongoing peace efforts are not jeopardized.”84
However, Derbal shows that because of the lack of political will to engage in a significant peace process on the part of the GoS, the peace process had been “noticeably slow before the involvement of the ICC.”85 Moreover, weakening, if not overthrowing the regime in
Khartoum, seems to be “a prerequisite to lasting peace in Darfur.”86 These are both valid
arguments, and the peace process in the South has been completed, but in the meantime the violence in Darfur is ongoing. What is more, humanitarian efforts have been blocked various times by the GoS, making the situation for civilians worse. The court was aware of the risk of back-firing actions, as Moreno Ocampo said, before he unveiled the charges against Al-Bashir in 2008, that he was not swayed “by the possibility that the ICC’s decision could prompt a violent reaction.”87
It has been clear from the beginning that the referral of Sudan to the ICC would stir up reactions, and perhaps even actions. Kastner states that although some feared that sanctions would have negative effects on the peace talks, “others, such as the United States, argued that it would, in fact, strengthen the political and diplomatic process.”88 The court’s
own position becomes clear through the biannual reports to the SC regarding Sudan. In June 2007, the prosecutor emphasizes that “justice for past and present crimes will enhance security and send an important warning to individuals who might otherwise resort to criminality as a means of achieving their aims.”89 A year later, he states: “[i]mpunity is fueling violence. The criminals, as they want to pursue their objective of destroying the communities of Darfur, and not be exposed, are hampering security and humanitarian efforts. Arresting Harun … can contribute to the creation of genuine conditions for peace and
84 M. Tran, ‘African leaders call for withdrawal of Darfur genocide charges’, The Guardian, 21 July 2008. 85
A. Derbal, ‘The ICC’s Involvement in the Situation in Darfur: Not a Threat to Peace’, University of Notre Dame
Center for Civil & Human Rights (Working Paper No.1, 2008), available at:
http://www.nd.edu/~ndlaw/cchr/papers/ayad_The_ICC_and_Darfur.pdf.
86
Kastner, ‘The ICC in Darfur – Savior or Spoiler?’, 169.
87
P. Walker, ‘Darfur genocide charges for Sudanese president Omar al-Bashir’, The Guardian, 14 July 2008.
88
Kastner, International Criminal Justice in bello?, 87.
89
International Criminal Court, Fifth Report of the Prosecutor of the International Criminal Court to the UN Security
security.”90 The view that international justice can contribute to ending the crimes in Darfur was supported by Ban Ki-Moon, who said that, “justice is a condition for peace” and “peace and justice are indivisible.”91
Conclusion
Ban Ki-Moon decomposes the presumption that justice and peace in Darfur are two opposing sides, and alternatively puts forward that they are two sides of the same coin. That coin represents resolving the conflict, which cannot be achieved without addressing both the need for peace and the desire for justice. This view builds on the fact that the court was involved in Darfur when the conflict was ongoing and a complex process of political
transition was supposed to take place before justice could have even begun. Arguably, justice can only be a condition for peace when peace has not yet been reached. Once peace is
reached, justice can still be a condition to maintain this peace. Moreno Ocampo was aware of the court’s difficult position as he expressed in his December 2005 report that his Office would continue to be “sensitive to these dynamics.”92 In June 2006 he expressed that “particular attention will be given to investigating crimes currently affecting the lives and safety of the two million displaced civilians in the region, in an effort to improve conditions for humanitarian assistance and protect victims from further attacks.”93 To secure all of these
goals, while at the same time carry out an investigation into crimes allegedly committed by the very same government that is to secure those conditions is a rather difficult task.
The ICC’s decision-making process in the case of Sudan proves that their timing was strategically off. Peacekeeping operations have been hampered by indictments made by the ICC. For instance, the court’s decision that Al-Bashir may be charged with genocide was issued only months before a referendum in 2011 when the South would vote on secession. The arrest warrants issued against Omar al-Bashir led to more violence. Whenever
90
International Criminal Court, Seventh Report of the Prosecutor of the International Criminal Court to the UN Security
Council pursuant to UNSCR 1593.
91
‘Peace and Justice are indivisible according to Ban Ki-Moon’, International Federation for Human Rights, 15 October 2007.
92
International Criminal Court, Statement of the Prosecutor of the ICC to the United Nations Security Council pursuant
to UNSCR 1593, 13 December 2005.
<http://www.icc-cpi.int/NR/rdonlyres/4A0A3DEF-42FE-4D9E-BFDC-760A8B9585E7/0/LMO_20051213_En.pdf.>
93
International Criminal Court, Statement of the Prosecutor of the International Criminal Court, Mr. Luis Moreno
significant steps towards achieving justice were taken, complete peace seems to have been delayed. Perhaps the cause of these failed tactics was the timing of the SC’s referral, as its Resolution was adopted only two months after the signing of the Comprehensive Peace Agreement in the South. At this moment, the long awaited peace was extremely fragile
The Security Council put the court in a difficult position twice in its history: once with its referral of Sudan and once again with Libya. Resolution 1973 marked the first time the Council had “authorized the use of force for human protection purposes against the wishes of a functioning state.”94 Therewith the Council had created a precedent for Sudan. However,
an analysis of the SC’s follow-up in these two instances illustrates that the politics of the decision to refer these cases to the court determined the actions that followed. The difference in the cooperation between both institutions that followed is that the court was left to deal with the situation on its own in Sudan, while it was backed forcefully by further action in Libya. The perceived urgency of the crisis played its part: the referral of Libya occurred only eleven days after the Libyan uprising. With Sudan, it took over two years to take this action. In these cases, timing seems to illustrate the willingness of the SC to follow up on its referral.
The court has been extensively criticized for being the main obstacle to the peace process. However, actual peace in the South was only established after the SC referral of March 2005 and, thus, when the court was still involved. Causally speaking, the court cannot be accused of having hampered the peace process; it can only be speculated that it
complicated or even delayed the negotiations. Moreover, Darfur is still in a state of crisis; the court’s fight against impunity has not stopped the violence. We are not in a position to judge what the victims would prefer; most probably they want the violence to end but, when it does, they will likely want justice to prevail. However, one could argue that if the court is criticized for hampering peace, then the SC should be criticized too, because they are responsible for getting the court involved. Once it was involved it had no choice but to put justice over peace, because that is its mandate. In the words of Steve Crawshaw of Human Rights Watch: justice is not a tradeable option.
94
A.J. Bellamy and P. D. Williams, ‘The new politics of protection? Côte d’Ivoire, Libya and the responsibility to protect’, International Affairs 87 (2011) 825.
State-cooperation in the International
Criminal Court
Introduction
Within Sudan, Al-Bashir has the executive power to govern not only its political, but also its legal system. He is, as a ruling head of state, immune from prosecution in his own country. Consequently, it was perceived that nothing could stop the Khartoum government from continuing with their violent campaigns and their support to the Janjaweed. With the court’s arrest warrant in March 2009 an attempt was made to diminish Al-Bashir’s power. It was to prevent Al-Bashir from continuing with the commission of the crimes he was already accused of having co-perpetrated. This created an interventionist position for the court considering the ongoing conflict in Darfur.
The arrest warrant was also to ensure that he would not obstruct the ongoing
investigation into the crimes for which he was allegedly responsible under the Rome Statute of the court. In light of that, a second arrest warrant was issued against Al-Bashir, a year
later, on July 12, 2010. The main difference was that this time the much-debated count of genocide was added to the list of crimes that Al-Bashir was, on reasonable grounds, allegedly responsible for having committed. Already in the press release following the first arrest warrant the judges directed a request “for cooperation for the arrest and surrender of Omar Al Bashir to Sudan, and to all States Parties to the Rome Statute and all United Nations Security Council (UNSC) members that are not party to the Statute.”95 The court relies on outside states, because it has no armed forces to send to Sudan to perform this arrest.
Unfortunately for the court, it has not been able to rely on any states to perform the arrest. For example, in February 2014, the Democratic Republic of the Congo, a state party since April 2002, refused to arrest Al-Bashir when he arrived for a conference of COMESA. Member states are legally obliged to arrest Al-Bashir. Al-Bashir is both sheltered and threatened the most by regional states. Most governments in the region have a shared interest in limiting the encroachment of Western influence96, while they are at the same time
the easiest mobilized and closest by to perform the arrest warrant. Regarding the case of Sudan, the African Union has condemned Al-Bashir’s arrest warrant extensively claiming it is political in character and “incompatible with the rules of international law.”97 It has
repeatedly petitioned the UNSC, without success, to stop the investigations in Sudan and to freeze the arrest warrant against Al-Bashir while also “calling on its member states not to cooperate with the ICC in effecting the warrant.”98 Member states of both institutions were put in a difficult position – by which law should one abide?
This chapter will continue by answering what obligates member states, legally, to cooperate with the ICC. What do the provisions of the Rome Statute prescribe? It will become clear that these obligations lack the power of enforcement, which contributes to the current degree of non-cooperation. Regional politics are another influence. The next section
95
International Criminal Court, Press Release: ICC issues a warrant of arrest for Omar Al Bashir, President of Sudan, 4 March 2009. <http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc
%200205/press%20releases/Pages/icc%20issues%20a%20warrant%20of%20arrest%20for%20omar%20al%20bashir_ %20president%20of%20sudan.aspx>
96
L. J. M. Seymour, ‘The regional politics of the Darfur crisis’, The International Politics of Mass Atrocities. The case of
Darfur, ed. David R. Black and Paul D. Williams, (Abingdon: 2010) 63.
I will elaborate on this below.
97
‘AU Condemns al-Bashir’s Arrest Warrant’, AU Monitor, March 2009.
<http://www.pambazuka.net/aumonitor/index.php/AUMONITOR/comments/au_condemns_al_bashirs_arrest_w arrant/?/comments/au_condemns_al_bashirs_arrest_warrant/>
98
