The relationship between the United Nations Security Council (UNSC) and the International Criminal Court (ICC) has continued to deteriorate since the decision in December 2014 to shelve Darfur war crimes probe. The ICC ruled that Sudan had failed to arrest Omer Hassan al-Bashir over alleged war crimes in the western region of Darfur and passed the case to the Security Council to take “the necessary measures they deem appropriate”. This request came three months after the ICC’s chief prosecutor, Fatou Bensouda, said she was suspending her criminal investigations of Darfur atrocities because they could not make progress without cooperation from Sudan and coercive pressure from the Security Council.
The pre-trial chamber II of the International Criminal Court (ICC) said that Sudan failed to cooperate with the court by not arresting and surrendering president Bashir to the Court. The chamber stressed that “if there is no follow up action on the part of the UNSC, any referral by the council to the ICC under chapter VII of the UN Charter would never achieve its ultimate goal, namely, to put an end to impunity.”
Sudan is not a state party to the ICC Rome Statute and has no obligation to cooperate with the ICC. Sudan cooperated with the court until the first arrest warrant against Janjaweed leader Ali Kushayb and former state minister for interior Ahmed Haroun were issued in 2007. Despite findings of non-cooperation being referred by ICC judges to the UNSC, the council has declined to take action mainly over China’s likely move to block any resolution that would compel Sudan to cooperate.
Following this, Sudan’s information minister Ahmed Bilal Osman stated that, “The decisions of the ICC are not in any way binding to the Sudanese government and raising Sudan’s case with the Security Council reflects the failure of the ICC.” He also went on to claim that “The ICC knows it doesn’t scare Sudan at all.” This clearly indicates the ICC’s standing in Sudan with Bashir and his fellow cronies continuing to thumb their noses at the court.
The ICC’s pre-trial chamber I issued an arrest warrant for President Bashir, on 4th March 2009 on charges of genocide and war crimes in Darfur, along with defence minister Abdel-Rahim Mohamed Hussein, former state minister for interior Ahmed Haroun and Janjaweed leader Ali Kushayb. The chamber claimed there were reasonable grounds to believe that Bashir is criminally responsible for five counts of crimes against humanity and two counts of war crimes. The same chamber, albeit with a different composition, issued a second warrant of arrest for Bashir on 12 July 2010, for three counts of genocide.
UNSC referrals have proved the most contentious route to achieving ICC jurisdiction, as has been the case with Sudan and Libya. Therefore the controversy with ICC referrals by the UNSC is that they may be regarded as a violation of State sovereignty and non-intervention, two principles enshrined in international law.
Inaction by the UNSC may be due to the strong outrage from the African Union and controversy surrounding the arrest warrant for a standing Head of State. Following intense criticism from members of the international community, the UNSC should have perhaps chosen to pursue reconciliation in Sudan, rather than further exacerbate the problem by facilitating the prosecution of Bashir.
The biggest flaw of the ICC is that its effectiveness depends on the cooperation of governments. It is not the independent judicial body it pretends to be. Its jurisdiction can be dictated at the say-so of the Security Council. In the last six years, all the ICC and UNSC have done is pass the Sudan case back and forth between themselves with not one single suspect in custody.
Many experts are beginning to say that the ICC is a failed experiment. Given that the ICC operates in a hostile political environment with its personality clashes and poor management, it was only a matter of time before it faced serious obstacles. Even Israeli Prime Minister Benjamin Netanyahu is planning to launch a campaign to discredit the legitimacy of the ICC, following its announcement that it would pursue a war crimes probe against Israel over its 50-day attacks on Gaza last year.
Is the lack of backing from the US, Russia and China the reason for its lack of credibility and failure to be taken seriously as an international organisation? More than a decade after its creation, the ICC is still struggling to find its foothold, jeopardising its already fragile reputation as a truly global court.