25 Jul President Bashir in Chad: Enough Failure to Go Around
[The following is a guest-post by Lt. Col. Chris Jenks, the Chief of the International Law Branch in the Army’s Office of the Judge Advocate General. He is blogging in his personal capacity.]
The day ICC supporters and detractors alike hoped would come, albeit for very different reasons, arrived on Wednesday, July 21st — Sudanese President Omar Bashir publicly visited a State Party (Chad) to the Rome Statute for the first time since the ICC issued a warrant for his arrest on war crimes and crimes against humanity charges in March 2009. Perversely or tellingly depending on one’s perspective, the visit comes just over a week after a July 12th pre-trial chamber ruling which led to a second ICC arrest warrant being issued for Bashir, this time for genocide.
Dov Jacobs has an interesting discussion on whether Chad is legally obligated to arrest Bashir. Jacobs argues that, contrary to media claims that the ICC warrant in and of itself requires Chad to arrest Bashir, the ICC must request Chad’s cooperation under art. 89 of the Rome Statute and that the request must, under art. 91, contain certain information, including the arrest warrant. Jacob notes that the Rome Statute does not link the art. 89(1) obligation to the warrant itself but that “States Parties shall…comply with requests for arrest and surrender” and that it’s unclear whether has requested Chad do so.
That such a lack of clarity on the mechanics of arrest under the Rome Statute may still exist in 2010, and with the number of fugitives whose arrest is still pending, is disconcerting. But Chad’s reticence is hardly due to not receiving a formal request from the Court. Chadian leaders openly welcomed Bashir with the Mayor of Chad’s capital city of N’djamena presenting him a key to the city.
If nothing else, Bashir’s visit should prompt clarification of States Parties’ obligations and the arrest and surrender process. [And what of the members of MINURCAT (United Nations Mission in the Central African Republic and Chad) currently in Chad? The MINURCAT website trumpets the mission’s role in “protecting civilians, promotion of human rights, rule of law and regional peace”. What if anything is MINURCAT’s obligation with Bashir in Chad?]
Sadly, far from contradicting African Union policy, Chad’s flauntingly deliberate inaction seems in accordance with a 2009 AU resolution which stated that AU members “shall not cooperate” with the arrest and surrender of Bashir. The AU however is not a party to the Rome Statute. Chad is. Whether Chad has met its pacta sunt servanda obligations viz the Rome Statute or not, Bashir’s public presence in Chad, and AU tolerance (if not support), re-raises the question of how serious Africa is in supporting international criminal justice and ending impunity. Or, more unfortunately, perhaps it answers the question.
What would it take for Lt. Col. Chris Jenks to address the question of how serious America is in supporting international criminal justice and ending impunity when it refuses to accede to the ICC and obstructs independent inquiries into the criminal behavior of its allies?
Bored-Not sure the connection of your remarks to my post. Chad is a State Party to the Rome Statute and subject to UNSC resolutions on Darfur and seems in violation of its obligations to one if not both. On the broader level of criminal justice and ending impunity, I think there is a role for the ICC, but I don’t believe it to be the sine qua non. In terms of the US, obviously the UNSC could not have referred the situation in Darfur without US and other permanent council members’ support. Do you think any other nation in the world has provided more funding to the various tribunals than the US?
Chris
Dear Chris,
Firstly, I think the point “Bored Individual” was making was that you appear to be wanting to have your cake and eat it. Either you accept the ICC as a legitimate, international mechanism for prosecuting war crimes: in which case the actions of Chad pale in comparison to the persistent attempts by the US to undermine the Court. Or – for whatever reason – you reject the Court’s legitimacy (which your tone appears to suggest) in which case Chad’s (in)action – as well as the AU’s – should be lauded as a principled stance against an illegitimate mechanism. You can’t have it both ways.
Secondly, I think your reference to the “US support” in UNSC Res 1593 is a bit misleading, capitulation in the face of overwhelming public and political opposition is not support.
Thirdly, Chad’s actions aside, I think the question of whether or not Africa is committed to ICJ is more complex and nuanced that your post suggests. That relationship is broader than both the question of al-Bashir and (in fact) the ICC, and should not be oversimplified. At the very least, the question of whether Africa is committed to ICJ is by no means “answered” by Chad’s actions.
Thanks,
Chris
What I wonder is whether Chad could be sued at ICJ by other members. One can read in the Rome statute:
Article 119 Settlement of disputes
2. Any other dispute between two or more States Parties relating to the interpretation or application of this Statute which is not settled through negotiations within three months of their commencement shall be referred to the Assembly of States Parties. The Assembly may itself seek to settle the dispute or may make recommendations on further means of settlement of the dispute, including referral to the International Court of Justice in conformity with the Statute of that Court.
Ex Africa(Chris?) – I have trouble reconciling your critique of the US towards the ICC, while at the same time you argue that a State Party like Chad welcoming Bashir even though he is under an arrest warrant for genocide is some kind of principled stance. If Chad’s actions are a principled stance, I shudder at what that principle is. For Chad, wanting the benefits of ICC membership with no responsibilities seems to be the very trying to have it both ways of which you complain against the US. In terms of the US and the UNSC, I think you are right, labeling the US abstention (along with China and two other members) as support was overreaching. I don’t reject the Court, sorry if my tone suggested that. I am frustrated by the Court in not having completed a single case thus far. Having just returned from a conference in Africa about the ICC and Africa I certainly agree that this is a complex and nuanced area in general. But is this specific issue? I think refraining from publicly welcoming an alleged genocidaire (and handing him a key to the city? Really?) against whom an ICC warrant has been issued… Read more »
“Jacobs argues that […] the ICC must request Chad’s cooperation under art. 89 of the Rome Statute and that the request must, under art. 91, contain certain information, including the arrest warrant.”
Such a request has been made following the issuance of both warrants; the latest one is available here: http://www.icc-cpi.int/iccdocs/doc/doc910850.pdf
As I posted in my response to D. Jacobs, I do not think there is too much unclarity surrounding the question of whether Chad has an obligation to arrest Al-Bashir. The PTC in its ‘Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir’ (4 March ’09) after issuing its warrant, directed the Registrar to ‘prepare a request for cooperation seeking [Bashir’s] arrest and surrender’ and to transfer it to all the States Parties (an similar order was also made for this month’s second arrest warrant on genocide). An issue that I would, however, like to see claried is how Chad (and any other State Party playing host to Bashir) is expected to deal with the two utterly conflicting legal obligations that it is facing. On the one hand, as a result of the previously mentioned Chamber request, it holds a treaty obligation towards the ICC to enforce the arrest warrant, while, on the other hand, Chad has an obligation to adhere to Al-Bashir’s absolute Head of State immunity, as granted under customary international law. This case embodies such a wonderfully messy overlap between the three legal regimes of the ICC as a treaty-based court, the Security Council with authoritative political power and customary… Read more »
Mark and Michiel,
Thank you for pointing out the requests made by the Registrar. It does somewhat change my conclusion (if not my initial point), even if I might question the wholesale use of article 89(1) in a sort of wholesale and preemptive way to all State parties, as done by the PTC.
Indeed, 89(1) mentions that the request can be made to “any State on the territory of which that person may be found” rather than just “any State”. If the second part of the sentence is to have any meaning, it surely implies that the Court cannot send a request to all States in the world, but must have a reasonable basis for the presence of the accused on the territory of a State before issuing the request to that State.