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.
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It would be difficult to give the ICC a bigger political role – it is already unaccountable enough, it is (quite properly) insitutionally single-minded and it is not equipped to make credible trade-offs between peace and justice. That has to be a political role.
The better approach is to make the Security Council more responsible – either through political pressure or through a change in the rules governing those situations where the ICC acts at the behest of the Security Council.
On the first of these – political pressure – why have no Arab or African Security Council members brought a resolution for invoking Article 16 to the table? Even f the resolution is defeated – the debate and explicit decision is valuable in itself. Alternatively, the Secretary General could use his powers (Art 99 of the UN Charter, Rule 3 of Security Council) to bring this matter to the attention of the Security Council. This would be a great improvement on the “no peace without justice” line he has been using to duck his own responsibilities so far. There is simply no real world evidence that supports this rosy view. The point of the Secretary General taking the initiative would not be to determine the outcome, but to force a debate and perhaps an explicit decision on Article 16, one way or the other. This would be the correct and responsible way for the Security Council to act. Whatever the outcome, it should be welcomed by the ICC as ‘political cover’ for a range of grave consequences that could flow from the ICC’s actions, for which the ICC itself does not (and should not) have responsibility.
On the second of these – a change in the rules – the Rome Statute could be amended to require (not just allow) the Security Council to vote on invoking an Article 16 deferral in certain circumstances or at certain points in the process before the ICC will proceed further. The circumstances might include: any investigation initiated by Security Council resolution; any situation where diplomatic immunity would prevent arrest and detention (in this situation they could also introduce a ‘requires’ obligation to arrest the suspect); any situation where the SG deems the risks to peace to be material. The appropriate points could be before issuance of an arrest warrant or before the commencement of a trial.
The argument that this would be ‘political interference’ is entirely vacuous… many of the situations investigated by the ICC are inherently political and the tensions between peace and justice are real, and require a body with broad authority to reconcile them. The ICC cannot do this – it needs to be relentless in its pursuit of justice, but constrained by the wider political concerns that are properly the business of the Security Council.
The division of responsibility between the African Union and the UN is also significant. Last July, the AU Peace and Security Council passed a resolution calling for the UN Security Council to defer the Bashir prosecution under Article 16 of the Rome Statute. The AU Summit in reaffirmed that call recently and dispatched a delegation to the UN Security Council to argue the case. The African delegation was dismissed with the minimum of ceremony.
Today, about 60% of the UN Security Council’s business concerns Africa. But Africa has no permanent representative on the Council and no veto. It is deeply problematic if the Council is so peremptory with the AU PSC, its resolutions and its sensitivities.
It is inconceivable that any African government will refer itself to the ICC under current circumstances. The three African self-referrals, Uganda, DRC and CAR, will likely be the last. We can anticipate that the AU will be seeking to establish an intermediate mechanism that can take account of the interests of peace and stability prior to any renewed African engagement with the Court. However, only the UNSC and the Rome Statute Assembly of States Parties have the authority to establish such a mechanism. As Mogogo indicates, the mechanism lacks an essential safeguard.
Thanks for providing so much background on the ICC issue! The Darfur Radio Project’s March show also covers the ICC controversy. Listen at http://www.darfurradioproject.org.
Great analysis! However, ICC has sent a STRONG signal that justice indeed is the forerunner of peace, and has proved beyond all reasonable doubt that the courage to pronounce justice is NOT lacking, even if the power to enforce the pronouncement is non-existent. I am sure other leaders in all despotic countries are listening. I want to appeal to all legitimate leaders around the world to see the Sudanese leader as who ICC has now legally named him: A Criminal, one that must be ostracized and ignored.
It is a strong signal indeed; but it comes from an international system which is bankrupt financially and unrepressentative politically. The fact that the Group of 8 will meet as the Group of 20 in April is a recognition of the necessity of changing the Security Council too. On the other hand the financial crisis reflects the standard of leadership of the system which relies on military adventures ; debt and hedge funds .
In a sense the ICC epitomises the bleak international landscape . Similarly; the support which Sudan has received shows the rise of the New Forces which do not accept subservience and which will -eventually- reshape the world .