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.