Pre-Trial Chamber Puts Ball in Security Council’s Court Re: Chad

by Kevin Jon Heller

Omar al-Bashir, the President of Sudan, visited Chad earlier this year. The Chadian government made no attempt to arrest him, despite the fact that — as a member of the ICC — both SC Res. 1593 (the Darfur referral) and the Rome Statute obligated it to cooperate with the Court’s arrest warrant. Human rights groups criticized Chad’s unwillingness to arrest Bashir at the time, and now the Pre-Trial Chamber has formally referred Chad’s non-cooperation to the Security Council. Here are the relevant paragraphs of its judgment:

22. In this context, the Chamber wishes to point out that, unlike domestic courts, the ICC has no direct enforcement mechanism in the sense that it lacks a police force. As such, the ICC relies mainly on the States’ cooperation, without which it cannot fulfil its mandate. When the Security Council, acting under Chapter VII of the UN Charter, refers a situation to the Court as constituting a threat to international peace and security, it is expected that the Council would respond by way of taking such measures which are considered appropriate, if there is an apparent failure on the part of the relevant State Party to the Statute to cooperate in fulfilling the Court’s mandate entrusted to it by the Council. Otherwise, if there is no follow up action on the part of the Security Council, any referral by the Council to the ICC under Chapter VII would never achieve its ultimate goal, namely, to put an end to impunity. Accordingly, any such referral would become futile.

23. Having said the above, the Chamber recalls article 87(7) of the Statute according to which, “[wjhere a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute […] the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council”. Since the Republic of Chad has failed to cooperate with the Court with regard to the arrest and surrender of Omar Al-Bashir, thus preventing the institution from exercising its functions and powers under the Statute, the Court cannot but refer the matter to the Assembly of States Parties and the Security Council.

Although necessary, this is a risky move by the ICC. As Mark Kersten has repeatedly documented, the Security Council has proven far more willing to refer situations to the Court than to ensure that the Court has the ability to successfully investigate those situations. If the Security Council stays true to form and fails to respond to the PTC’s referral, it will do significant damage to the Court’s legitimacy. Why should any suspect fear arrest while traveling abroad if the Security Council won’t even penalize ICC member-states that fail to comply with its own resolutions?

Stay tuned.

http://opiniojuris.org/2013/04/03/pre-trial-chamber-puts-ball-in-security-councils-court-re-chad/

2 Responses

  1. How is this order different from the one issued on 13 December 2011?

  2. Kevin, Just a minor correction: SC Resolution 1593 does not impose an obligation on Chad or any UN member, aside from Sudan (and parties to the conflict), to cooperate with the ICC in respect of the situation in Darfur.

    Paragraph 2 stipulates:
    “Decides that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully;”

    At most one can say that this paragraph recognizes the existence of an obligation on the part of ICC members, but it still cannot be seen to impose an obligation independent from the ICC Statute.

    Of course, one may wonder whether the obligation to cooperate ought to be considered applicable, considering that the ICC decision to request the arrest of President Al Bashir appears to violate his immunities under international law as recognized by article 98(1) of the ICC Statute (notwithstanding other decisions of the PTC that he does not enjoy such immunities in case of being prosecuted before an international criminal tribunal for international crimes).

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