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15 April 2015
This is the winning entry in the HART Prize for Human Rights Junior Essay Category. Read more entries here.
The inception of the International Criminal Court via the 1998 Rome Statute was a landmark event. Established as a “court of last resort” to try suspected perpetrators of war crimes and other extremely serious criminal offences, the ICC has courted controversy over its 12 year lifespan- significantly following the suspension of its investigations into alleged war crimes perpetrated by the Sudanese government in the Darfur region[i]. The question remains as to whether such a measure was a justified course of action.
Firstly, the ICC’s suspension of its Sudanese investigations can be justified on the basis that halting further investigation would prompt a redoubling of international efforts bring the suspects of war crimes to justice. As set out within its founding document, the ICC lacks an independent capability to enforce its international arrest warrants, instead relying on member states to comply[ii]. This presents a serious issue, given that the warrants issued for Sudanese officials such as President Omar al-Bashir and Interior Minister Ahmed Haroun have been ignored by a range of nations, frustrating efforts to bring individuals to trial[iii]. Having referred the Darfur case to the ICC in 2005, the United Nations Security Council has the remit to compel nations to comply with an enforcement regime, obliging them to arrest indicted suspects upon their arrival in sovereign territory[iv]. However, despite the efforts of the ICC in consistently calling for action on the deteriorating situation in Darfur in its 20 briefings on its investigation, no concrete action has been taken by the Council[v]. The advent of China- a key ally of Sudan, possessing veto power in the UNSC has worsened existing political inertia, scuttling any progress on a resolution[vi]. Thus, it is reasonable to posit that rather than propagating an inactive status quo, suspending investigation to bring the Council’s attention to the gravitas of the situation serves as a more workable course. Public scrutiny on the Council’s role in addressing the Darfur case has undoubtedly increased as a result, and key figures such as US Ambassador to the UN Samantha Powell have issued renewed criticism of Sudan’s resistance to further investigation conducted by the United Nations–African Union Mission in Darfur (UNAMID) peacekeeping force of mass rape allegations in February 2015[vii].
Moreover, this is especially pertinent given that a key motivation behind chief prosecutor Fatou Bensouda’s suspension of investigations was to “shift resources to other urgent cases”[viii]. With seven investigations running in parallel, the ICC’s relevant assets are clearly demonstrated to be at a premium[ix]. Therefore, it would be pragmatic for the Court to ensure that its resources are invested where there is likely to be tangible benefit- which unfortunately remains to be seen on the Darfur case.
Nevertheless, it can be argued that the suspension of investigations reduces the legitimacy and standing of the ICC on the international stage. A number of blocs such as the Arab League and the African Union (AU) have called for their member nations to cease all cooperation with the Court, with the latter urging they speak “with one voice” against the ICC[x]. In suspending its Sudanese investigations, the ICC risks creating the perception that it has conceded to such detractors, clearly illustrated in statements made by President al-Bashir himself who emphatically declared that the “colonial courts” had “surrendered”[xi]. Especially following the damaging collapse of prosecution against Kenyan President Uhuru Kenyatta, the ICC has sought to bolster its repute as an effective institution[xii]. Instead, hibernating investigations in Sudan has further sidelined the Court in the prosecution of atrocities, rendering its arrest warrants increasingly irrelevant. Closely linked to the perception of the ICC as an incapable institution is the emboldening of the perpetrators of the very crimes it aims to prosecute. In demonstrating an unwillingness to pursue further investigation, the perception that those responsible can commit crimes with further impunity is reinforced- albeit falsely, given that their arrest warrants are still in place[xiii]. As a result, an increase in brutality similar to the alleged rape of 200 women in Darfur by Sudanese troops in November 2014 becomes increasingly likely[xiv]. This is further complicated by the request of Sudanese government to initiate the exit of UNAMID peacekeepers from the country in late 2014[xv]. Their departure would mark the loss of a valuable safeguard for Sudanese civilians against violence, and additionally any mechanism for ensuring perpetrators of violence are held to account- compounding the situation further.
Overall, I believe the suspension of investigations into alleged Sudanese war crimes by the ICC is unjustified. Although motivated by pragmatic strategy and aiming to facilitate the arrest of suspects in Sudan, the potential for unintended consequences from the maneuver in sparking additional humanitarian abuses against innocent civilians outweigh the political benefit.
References
[i] International Criminal Court. ‘ICC at a glance’ http://www.icc-cpi.int/en_menus/icc/about%20the%20court/icc%20at%20a%20glance/Pages/icc%20at%20a%20glance.aspx Accessed 22nd February 2015
[ii] Global Institute for the Prevention of Aggression. ‘The ICC and the UN Security Council’, http://crimeofaggression.info/role-of-the-icc/the-icc-and-the-un-security-council/ Accessed 13th February 2015
[iii] Bashir Watch. ‘Bashir Travel Map’, http://bashirwatch.org/ Accessed 14th February 2015
[iv] United To End Genocide. ‘Is 20 Times Enough? UN Security Council Briefed On Darfur Criminal Court’, http://endgenocide.org/press-materials/20-times-enough-un-security-council-briefed-darfur-criminal-court/ Accessed 13th February 2015
[v] Ibid.
[vi] The Guardian. ‘ICC chief prosecutor shelves Darfur war crimes probe’, http://www.theguardian.com/world/2014/dec/14/icc-darfur-war-crimes-fatou-bensouda-sudan Accessed 13th February 2015
[vii] Sudan Tribune. ‘UK backs calls for new investigation into Darfur mass rape allegations’, http://www.sudantribune.com/spip.php?article53983 Accessed 22nd February 2015
[viii] Opinio Juris. ‘OTP Suspends Darfur Investigation’, http://www.sudantribune.com/spip.php?article53983 Accessed 13th February 2015
[ix] International Criminal Court. ‘All Cases’, http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/cases/Pages/cases%20index.aspx Accessed 15th February 2015
[x] Al Jazeera. ‘African Union urges united stand against ICC’, http://www.aljazeera.com/news/africa/2014/02/african-union-urges-united-stand-against-icc-20142111727645567.html Accessed 13th February 2015
[xi] British Broadcasting Corporation. ‘Sudan President Bashir hails ‘victory’ over ICC charges’, http://www.bbc.co.uk/news/world-africa-30467167 Accessed 13th February 2015
[xii] Euronews. ‘ICC prosecutor laments collapse of Kenyatta case’, http://www.euronews.com/2014/12/05/icc-prosecutor-laments-collapse-of-kenyatta-case/ Accessed 13th February 2015
[xiii] The Guardian. ‘ICC chief prosecutor shelves Darfur war crimes probe’, http://www.theguardian.com/world/2014/dec/14/icc-darfur-war-crimes-fatou-bensouda-sudan Accessed 13th February 2015
[xiv] Enca. ‘Sudan denies Darfur peacekeepers access to investigate “mass rape”’, http://www.enca.com/africa/sudan-denies-darfur-peacekeepers-access-investigate-mass-rape Accessed 14th February 2015
[xv] Diplomat. ‘Sudanese President Omar Hassan Al Bashir Asks UNAMID Forces To Withdraw From His Country’ http://diplomat.so/2014/11/30/sudanese-president-omar-hassan-al-bashir-asks-unamid-forces-withdraw-from-his country/ Accessed 14th February 2015
Bibliography
Al Jazeera. ‘African Union urges united stand against ICC’, http://www.aljazeera.com/news/africa/2014/02/african-union-urges-united-stand-against-icc-20142111727645567.html Accessed 13th February 2015
Bashir Watch. ‘Bashir Travel Map’, http://bashirwatch.org/ Accessed 14th February 2015
British Broadcasting Corporation. ‘Sudan President Bashir hails ‘victory’ over ICC charges’, http://www.bbc.co.uk/news/world-africa-30467167 Accessed 13th February 2015
Diplomat. ‘Sudanese President Omar Hassan Al Bashir Asks UNAMID Forces To Withdraw From His Country’ http://diplomat.so/2014/11/30/sudanese-president-omar-hassan-al-bashir-asks-unamid-forces-withdraw-from-his country/ Accessed 14th February 2015
Enca. ‘Sudan denies Darfur peacekeepers access to investigate “mass rape”’, http://www.enca.com/africa/sudan-denies-darfur-peacekeepers-access-investigate-mass-rape Accessed 14th February 2015
Euronews. ‘ICC prosecutor laments collapse of Kenyatta case’, http://www.euronews.com/2014/12/05/icc-prosecutor-laments-collapse-of-kenyatta-case/ Accessed 13th February 2015
Global Institute for the Prevention of Aggression. ‘The ICC and the UN Security Council’, http://crimeofaggression.info/role-of-the-icc/the-icc-and-the-un-security-council/ Accessed 13th February 2015
International Criminal Court. ‘All Cases’, http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/cases/Pages/cases%20index.aspx Accessed 15th February 2015
International Criminal Court. ‘ICC at a glance’ http://www.icc-cpi.int/en_menus/icc/about%20the%20court/icc%20at%20a%20glance/Pages/icc%20at%20a%20glance.aspx Accessed 22nd February 2015
Opinio Juris. ‘OTP Suspends Darfur Investigation’, http://www.sudantribune.com/spip.php?article53983 Accessed 13th February 2015
Sudan Tribune. ‘UK backs calls for new investigation into Darfur mass rape allegations’, http://www.sudantribune.com/spip.php?article53983 Accessed 22nd February 2015
The Guardian. ‘ICC chief prosecutor shelves Darfur war crimes probe’, http://www.theguardian.com/world/2014/dec/14/icc-darfur-war-crimes-fatou-bensouda-sudan Accessed 13th February 2015
United To End Genocide. ‘Is 20 Times Enough? UN Security Council Briefed On Darfur Criminal Court’, http://endgenocide.org/press-materials/20-times-enough-un-security-council-briefed-darfur-criminal-court/ Accessed 13th February 2015
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