Neighbours Ignore Warrant for Sudan Leader’s Arrest

Experts think sanctions unlikely against countries that fail to act on Internati
onal Criminal Court indictment.
By Tajeldin Adam, Assadig Mustafa, Simon Jennings - International Justice - ICC
ACR Issue 268,
3 Sep 10
After Sudanese president Omar al-Bashir visited Chad and Kenya unimpeded, observ
ers say they doubt the United Nations will take stern measures against countries
that violate their obligation to detain individuals wanted by the International
Criminal Court, ICC.
Bashir has been indicted by the Hague court and is accused of genocide as well a
s seven counts of war crimes and crimes against humanity, in relation to the con
flict in the western Sudanese region Darfur. He denies the accusations and says
Sudan does not recognise the ICC.
Bashir was in Chad on July 21 for an African free trade meeting and travelled to
Kenya on August 27 for the launch of its new constitution. Both countries are I
CC state parties and consequently were obliged to arrest the indicted president
if he enters their territory.
Both states have defended their failure to arrest the Sudanese president by citi
ng an African Union, AU, resolution not to send him to The Hague.
Judges at the ICC issued a decision on August 27 reporting the two visits to the
UN Security Council and the Assembly of the States Parties to the Rome Statute,
which underpins the court, “in order for them to take any action they may deem ap
propriate”.
It seems unlikely that the Security Council will take strong action against Chad
and Kenya following the judges’ referral, as it is yet to move on an earlier subm
ission by ICC judges in May, in which they formally informed it that Sudan was n
ot cooperating on the indictments against former state minister for humanitarian
affairs, Ahmed Harun, and alleged Janjaweed militia leader Ali Kushayb.
Under the Rome Statute, ICC judges may refer incidents where signatory states ha
ve broken the rules to the Assembly of States Parties, ASP. As it was the Securi
ty Council that originally asked the court to look at the case of Darfur, judges
can also refer such matters to the UN.
Tools at the Security Council’s disposal include issuing a statement on the incide
nts concerned, passing a resolution and even imposing some form of sanction agai
nst offending states.
Human rights groups are pressing for the two institutions to take action on coun
tries that receive Bashir and fail to act on the ICC indictment.
“What is very important at this point in time is for either the Security Council o
r the ASP – preferably both – to put as much political pressure as possible on Kenya
to show this is an unacceptable decision in the first place to have Bashir ther
e and also to allow him to leave without arresting him,” Elizabeth Evenson of New
York-based Human Rights Watch said with reference to the most recent case.
She stressed the need to “send a powerful message to all of the ICC state parties
that are obliged to cooperate with the ICC that, again, this is not acceptable”.
Goran Sluiter, an international lawyer in Amsterdam, was critical of the nature
of the ICC judges’ actual decision, arguing that although they did not explicitly
allege non-compliance on the part of Chad and Kenya, this was what was implied b
y referring the matter to the ASP and Security Council.
He said that according to ICC procedure, the judges should have first heard argu
ments from Kenya and Chad concerning their failure to arrest Bashir.
“When it comes to trying to get enforcement measures from the [Security] Council,
I think there is a set procedure that the ICC pre-trial chamber should have foll
owed, and in that procedure it should have given Kenya and Chad an opportunity t
o be heard,” he said.
Since judges had not followed this procedure, Sluiter said, the Security Council
was unlikely to take it seriously.
Other commentators were sceptical about whether the Security Council would want
to take tough action at a time when Sudanese domestic politics are going through
a particularly delicate phase. A referendum in January is intended to decide wh
ether South Sudan should secede and become independent.
“The Security Council is simply not ready to act on the case of the arrest warrant
and the ICC until the coming January. I wouldn’t expect any international party o
r parties to gamble on this issue,” Nabeel Adeeb, a legal expert in Khartoum, said
. “Efforts to arrest al-Bashir may accelerate after January 2011.”
Sluiter says there are also wider reasons to be pessimistic.
“The Security Council is a political organ that has not always been very supportiv
e of the ICC, and within the Council there are certainly states like Russia and
China who are not very pleased with the way things are going with the Darfur cas
e,” he said. “So I would not put any money on the Security Council taking serious ac
tion.”
IWPR contacted the Security Council for comment on the ICC referral of Bashir’s Ke
nya and Chad visits. A spokesman for the Council confirmed that the ICC document
had been circulated to its members, but said he could not comment further.
Experts have called for serious action from the ASP, too, in order to avoid crea
ting a precedent where Rome State signatories to shirk their duty to cooperate w
ith the court.
“If X state breached a legal agreement, they have to be held accountable, because
if no action is taken against them that would damage the whole concept of the le
gal obligation [to arrest],” Khartoum lawyer Ali Mahmoud said. “When they [Chad and
Kenya] breach their agreement, action must be taken otherwise the whole Rome Sta
tute will collapse.”
The Rome Statute does not set out what action the ASP should take to deal with a
n act of non-compliance by a member. The assembly has never been in this positio
n before, and it remains to be seen how it will react.
The president of the ASP, Christian Wenaweser, would not be drawn on what action
the body might take ahead of its next session in December. But he said that so
far he had received “pretty much no concrete reaction from any state parties”.
He also stressed the responsibility of the Security Council to take actions, say
ing, that the Rome Statute parties “are certainly called to react on the one hand,
but it is really also up to the Security Council”.
“In the case of Darfur, it was the Security Council of the UN who created jurisdic
tion for the court in the first place, so there is a special responsibility for
the overall conduct of that investigation and for the overall way in which state
s respond,” he added.
Sluiter warned that the ASP must take decisive action itself to prevent further
embarrassment for the court.
“You have to be somewhat specific to make it very unattractive for states to recei
ve al-Bashir,” he said. “There’s of course a risk now – with Sudan not cooperating, Chad
not cooperating, Kenya not cooperating – that it will spread and before you know
it, Bashir can go to many states.”
Tajeldin Abdhalla Adam is a Radio Dabanga reporter and IWPR trainee. Assadig Mus
tafa is working with Radio Dabanga. Simon Jennings is an IWPR reporter in The Ha
gue and producer of a radio show for Radio Dabanga about justice issues.
The article was produced in cooperation with Radio Dabanga (http://www.radiodaba
nga.org/), a radio station for Darfuris run by Darfuris from The Netherlands.