Hibernating the Darfur Situation: the Security Council’s influence over the International Criminal Court

In her Report to the Security Council of 12 December 2014, the International Criminal Court Prosecutor Fatou Bensouda announced the decision to put investigations into the Darfur situation on hold[1]. The Prosecutor reiterated the impossibility of obtaining any meaningful result in the situation without a change of attitude from the Security Council, whose inaction was repeatedly criticised also in her previous reports. Bensouda blamed the Council for not supporting the Court in different issues: the development of a coordinated strategy, the achievement of cooperation from Sudan, and the enforcement of the arrest warrant by other State Parties.

The Prosecutor’s decision calls for a general reflection on the influence of the Security Council over the actions of the Court. Such an influence is partially foreseen by the Rome Statute, which regulates the relationship between the two bodies. Most of the influence however arises from the Council’s policies and goes beyond any legal provision. This suggests that during politically inconvenient situations the Council could jeopardize the Court’s actions through extralegal policies, without consulting the relevant statutory provisions.

The Darfur situation

As Fatou Bensouda remarked, in almost 10 years of action in Darfur none of the individuals subject to an arrest warrant have been brought to justice. Most notably, Omar al-Bashir, charged with crimes against humanity, war crimes and genocide, is the sitting President of Sudan; in power since 1989, Bashir will run for re-election next April. State Parties to the Rome Statute have an obligation to enforce the arrest warrant despite other international obligations providing the respect for chief of state immunities. Albeit with growing difficulties, Bashir carries out official missions in State Parties to the Rome Statute (Chad, Malawi, Kenya, Democratic Republic of Congo) without fear of arrest. As a result, every decision in the case since 2010 has only been concerned with the lack of cooperation from Sudan and other State Parties in enforcing the arrest warrant[2] .

Meanwhile, humanitarian conditions in Darfur are deteriorating. Sudan has denied access to a village, Tabit, where a mass rape of 200 women was allegedly perpetrated. The UNAMID (United Nations–African Union Mission in Darfur), one of the main sources for the Prosecutor’s investigations, was authorized to visit the village only days after the allegations at a time when the victims were still in control of the alleged perpetrators. Furthermore, UNAMID is accused of under-reporting crimes that involved pro-government forces, fearing reprisals from the Government[3].

The power of the Security Council to influence the Court in the Rome Statute

The relationship between the Council and the Court begins with the mechanism that triggers the ICC jurisdiction, detailed in Art. 13(b) of the Rome Statute. Indeed, the Security Council, acting under Chapter VII of the UN Charter can refer a situation in which one or more such crimes appears to have been committed to the Prosecutor, also extending the Court’s jurisdiction over States that have not ratified the Rome Statute. Accordingly, the Council referred the situation of Darfur to the ICC through Resolution 1593/2005 giving the Court jurisdiction over Sudan, a non-State Party to the Rome Statute.

The second statutory link between the Council and the Court is provided by Art. 16 of the Rome Statute. Still acting under Chapter VII of the UN Charter (in circumstances where the actions of the ICC lead to threats to peace, breaches of peace, or acts of aggression), the UN Security Council has the power to block the proceedings for a period of 12 months, which can be renewed by another resolution. Attempts to exercise this avenue were made in the Darfur situation, claiming to be acting in response to the destabilisation and worsening humanitarian conditions in Sudan following the issuance of the arrest warrant against Bashir. The proposal to defer the proceedings against Bashir was suggested by several States, including Permanent members Russian Federation and especially China. However, in that opportunity, the U.S. opposed the deferral of the Darfur cases.[4] Nevertheless, the Darfur investigations were ultimately suspended by the Prosecutor: without referring to the statutory provision, the Council denied the Court the necessary support to carry out its activity: the power to undertake investigations in the territory; to enforce its arrest warrants; and to cover its funding.

Extra legal influence of the Council over the Court: the lack of enforcement power

It is commonly affirmed that the ICC lacks a “police force” to implement its decisions. Even more so, in the case of referral relating to situation in a non-State Party like Sudan, the support of the Security Council is crucial to obtain cooperation for investigations within the territory. As confirmed by the events in Tabit, it is extremely difficult to collect evidence of crimes in Darfur villages controlled by the allegedly responsible Governmental forces.

Furthermore, the ICC has not been able to enforce the arrest warrants issued in the Darfur situation. In her statements to the Security Council, Fatou Bensouda regularly highlights non-cooperation from State Parties in arresting al-Bashir during his official visits in their territory. It was observed[5] that, in the last few years, Pre-Trial Chamber decisions involving non-cooperation did not include a specific request for action by the Security Council. However, replying to the Prosecutor’s report, UK representative Ms. Mulvein beseeched the Council to timely and effectively follow-up to reports of non-cooperation with the Court and to assist the Court in fulfilling the mandate established 10 years earlier.

Funding situations referred by the Security Council

In her December Report, The ICC Prosecutor mentioned that the cessation of investigations in Darfur was also due to the fact that the already limited resources for investigations were overstretched. This raises the issue of the Security Council’s funding for the Court.

In principle, as an independent international organization, the ICC is primarily financed through the contributions of the Assembly of States party to the Rome Statute. However, the Statute singles out the particular case of financing in a situation referred to the Court by the Council. Among other sources of funding, Art. 115 of the Rome Statute includes those “provided by the United Nations, subject to the approval of the General Assembly, and in particular in relation to the expenses incurred due to referral by the Security Council”. Article 13 of the Negotiated Relationship Agreement between the International Criminal Court and the United Nations states that: “The United Nations and the Court agree that the conditions under which any funds may be provided to the Court by a decision of the General Assembly of the United Nations pursuant to article 115 of the Statute shall be subject to separate arrangements”. Conversely, the Council covers the topic of funding the Court’s Darfur referral in Resolution 1593/2005, which recognizes that “none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily”.

The Rome Statute does not provide compulsory or automatic funding from the Security Council in case of referrals pursuant to Art. 13(b) of the Statute. Therefore, even if the mandate of the Statute seems to recommend a different attitude, no statutory norm is formally violated. In practice,  the Assembly of States is currently responsible for the entire budget of the Court, which has also increased because of the increasing number of situations, including those referred by the Security Council: Darfur and Libya.[6] As explained by the Prosecutor[7], the limited funding from the Council to the Court de facto jeopardizes the actions of the ICC. This constitutes a form of indirect control over the actions of the Court that goes beyond any provision of the Rome Statute, and it is possibly more effective in limiting investigations and prosecutions than the use of Art. 16 of the Rome Statute.

Conclusions

The limited funding sources available for the Court’s work together with the lack of enforcement power even towards State Parties undermine the independence of the Court. In case of future politically inconvenient investigations, not necessarily triggered by Art. 13(b), the Security Council appears to have several ways to hinder the regular development of ICC actions.

[1]                      Reports of the Secretary-General on Sudan and South Sudan, S/PV.7337,  12/12/2014

[2]                      McDermott, the ICC Prosecutor ‘shelves’ the Darfur situation: What is the Security Council supposed to do? http://humanrightsdoctorate.blogspot.it/2014/12/some-thoughts-on-shelving-of-darfur.html

[3]                      Lynch, U.N. Whistleblower Decries ‘Cover-Up of a Cover-Up’ Over Darfur Debacle, http://foreignpolicy.com/2014/10/29/u-n-whistleblower-decries-cover-up-of-a-cover-up-over-darfur-debacle

[4]                      Scheffer, The Security Council’s Struggle over Darfur and International Justice, http://jurist.law.pitt.edu/forum/2008/08/security-councils-struggle-over-darfur.php

[5]                      McDermott,  n.2

[6]                      Hamilton, When Should the ICC Call It Quits? , http://opiniojuris.org/2015/01/10/guest-post-icc-call-quits/

[7]              “Faced with an environment where my Office’s limited resources for investigations are already overstretched, and given this Council’s lack of foresight on what should happen in Darfur, I am left with no choice but to hibernate investigative activities in Darfur as I shift resources to other urgent cases, especially those in which trial is approaching.” Bensouda, n. 1

bensouda

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