The Lion that Squeaked
As Khartoum holds its collective breath for the warrant for the President’s arrest we all know is coming on Wednesday (the ICC said as much with its Kafka-esque announcement this week that it will make an announcement next week), it is worth revisiting the basis for the Court’s jurisdiction in the first place. As Sarah Nouwen pointed out in these pages some months ago the arrest warrant will be, under international law, enforceable only by the Government of Sudan.
This anomaly arises out of the terms of UN Security Council Resolution 1593 by which the Court was empowered to act in relation to Darfur. That resolution failed to so much as request States other than Sudan to cooperate with the Court. As it happens, even a “requests“ (to use the arcane Resolution-speak) would not be enough to authorize any country other than Sudan to enforce a warrant against the President: nothing short of an obligation (a “requires“ to use arcane Resolution-speak) would suffice to trump head of state immunity vis-í -vis other states. If Al-Bashir turns up at the next General Assembly in New York – as well he could – bundling him on a plane to The Hague would be the most extraordinary rendition.
It is instructive to note that the defect in 1593 was born of US fear of the ICC: the hard-won resolution conceded that “States not party to the Rome Statute have no obligation under the Statute”. How things have changed when in recent deliberations among the veto-wielding 5 permanent members of the Security Council, the US – even under the Bush administration – was the most trenchant opponent of taking any steps that would seemingly undermine or politicize the Court.
And yet revisiting Resolution 1593 we also find that, right at the outset, in:
“Recalling article 16 of the Rome Statute under which no investigation or prosecution may be commenced or proceeded with by the International Criminal Court for a period of 12 months after a Security Council request to that effect”
the Security Council sent a clear message that what the Lord giveth, the Lord taketh away. And no bad thing that is too: in a final resolution of the tiresome “peace vs. justice” debate, the dynamic of open ended referral and time-limited deferral gave the opportunity for a delicate sequencing of the two essential processes. But few now recall that recalling, conveniently claiming that deferral would politicize the ICC. A peculiar argument, particularly when it comes from those who had no such moral qualms when lobbying for referral in the first place.
This new-found distaste for meddling with justice has the unfortunate consequence that nobody – and no Body – is empowered to take into account the interests of peace and security. The Rome Statute of the ICC – by quite sensibly contracting-out that responsibility to the Security Council – denies that power to any other organ of the Court. And so once the interests of justice are engaged the ICC engine trundles along on its pre-determined tracks, with no effective buffers in place.
Perhaps this calls for a recalibrating of the Rome Statute. Or perhaps the Security Council should take more seriously its role in maintaining peace and security – particularly where its own actions have set off processes which might threaten those two interests. Either way, all this uncertainty and shirking of responsibility for the sake of a legally unenforceable arrest warrant betrays a troubling lack of coherence in the international response to Sudan and Darfur.