2 April 2015 – 31 March 2015 marks ten years since the United Nations Security Council (UNSC) adopted Resolution 1593, referring the situation in Darfur, Sudan to the International Criminal Court (ICC) for investigation. Since then, the ICC has charged Sudanese President Omar al-Bashir with genocide, war crimes, and crimes against humanity, and has issued a public arrest warrant for him on these grounds. Years later, al-Bashir has still not been arrested. Earlier this month, the ICC finally ruled that Sudan has failed to cooperate in arresting and surrendering al-Bashir, and has called on the UNSC to “take the necessary measures” to address the situation. How the UNSC deals with Sudan and al-Bashir will have lasting impacts on the authority and effectiveness of both the UNSC and the ICC.
The ICC’s jurisdiction over matters is largely based on the consent of states — instances of genocide, war crimes, and crimes against humanity that take place within states, or against the nationals of states, that are party to the Rome Statute (the treaty founding the ICC) fall within the ICC’s jurisdiction. This is problematic as far as the situation in Darfur is concerned, since Sudan is not a signatory to the Rome Statute.
However, the UNSC has the power, under Chapter VII of the UN Charter, to refer a matter to the ICC, thereby giving the ICC jurisdiction over a situation that it otherwise would not have jurisdiction over. This referral mechanism recognises the threat that genocide, war crimes, and crimes against humanity pose to international peace and stability, and serves to align the mandates of the UNSC and the ICC in such situations. The UNSC has rarely exercised its referral power, having only used it to refer the situations in Darfur (2005) and Libya (2011) to the ICC for investigation.
Arrest warrants were also issued against Sudan’s then-minister of humanitarian affairs, Ahmad Harun; the defence minister, Abdel Raheem Muhammad Hussein; and Janjaweed militia leader, Ali Kushayb. All charges relate to the conflict in Darfur, which has killed more than 300,000 people since it began in 2003. But the arrest warrants have been entirely ineffective: not only have these individuals not yet been arrested, they remain in high positions in the Sudanese government. Even more shocking, Harun was appointed to co-chair a national committee investigating human rights violations in Darfur, and was also assigned to oversee the deployment of joint UN-AU Mission forces in Darfur.
Despite the ICC’s wide jurisdiction to investigate and prosecute grievous international crimes, the court does not have a military force to execute court orders; rather, it relies upon member states to execute its orders, including arrest warrants. In al-Bashir’s case, Sudan has simply ignored the ICC’s arrest warrant. A statement from the ICC noted that “Sudan has failed to cooperate 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 and to execute the pending requests for the arrest and surrender” of al-Bashir. Additionally, the ICC stated that Sudan had failed to discharge its obligations to consult or notify the Court of any obstructions that it faced in executing the arrest warrants.
Even more concerning, however, is that numerous other African countries have also failed to arrest and surrender al-Bashir while he has been on their soil. This is despite the fact that many of these African countries are signatories to the Rome Statute and therefore under a legal obligation to “cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court”(Article 86). If the ICC requests that a State Party to the Rome Statute arrests and surrenders a person while he is within the signatory’s jurisdiction, for the State Party to fail to do so is a direct violation of its legal obligations to the ICC and the ICC is entitled to refer instances of such non-compliance to the UNSC (Article 89). African countries that have failed to arrest and surrender al-Bashir, despite being signatories to the Rome Statute, include Nigeria and Kenya.
In the face of non-cooperation from Sudan and other African countries, the ICC is unable to make further progress on prosecuting the Darfur cases. In referring the matter back to the UNSC, the ICC has urged the UNSC to take necessary measures to achieve more effective cooperation with the court. The ICC also warned that if no action is taken, the UNSC will never achieve its goal to end impunity for those charged with the most grievous international crimes.
How the UNSC will deal with this matter remains unclear. The UNSC has the authority to enforce penalties that range in scope from embargoes to military intervention. It is apparent that any penalty adopted will need to be severe enough to prompt Sudan to hand over al-Bashir, and therefore an effective penalty will likely be closer to the more serious, military intervention end of the penalty spectrum, rather than a mere embargo.
However, there is more at stake here than arresting and prosecuting al-Bashir and his co-accused and achieving justice for Darfur – the future effectiveness of both the ICC and the UNSC is also on the line. If the UNSC fails to act, African leaders and the world at large will lose all veneration towards the UNSC. So, too, the ICC will be rendered toothless and its court orders will be routinely ignored. Therefore, the degree of assertiveness that the UNSC exercises in addressing the current Sudanese issue will determine the extent of respect and fearful regard (and, consequently, effectiveness) that the UNSC and the ICC will retain. If ever there were a time for the UNSC to act strongly and decisively to end impunity, this is it.