Trading peace for justice? The International Criminal Court’s and UN Security Council’s involvement in Darfur [Sudan]

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this short article reflects the relationship between the international criminal court and the united nations security council, in light of the unprecedented violence in darfur [sudan].

Submitted: November 17, 2016

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Submitted: November 17, 2016

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Introduction

The following article will observe the relationship between the International Criminal Court [Hereinafter ICC] and the UN Security Council [Hereinafter Security Council]. The article will also draw specific reference to the situation in Darfur [Sudan], and consider whether the relationship has given rise to friction between the values of peace and justice.

To achieve this, section 1 will define and analyse the role of the ICC and the Security Council. Section 2 will analyse in greater detail the situation in Darfur, and consider whether the relationship between the ICC and Security Council has exacerbated the friction between the values of peace and justice. The article will conclude that the relationship prima facie appears structured and functional to the naked eye, however in reality remains murky and strained.

1. The ICC and Security Council

The ICC is usually described as a branch of public international law that imposes direct responsibilities on individuals. Bassiouni notes, ‘the ICC is concerned with the most serious crimes which threaten international interest and fundamental human right values’[1]. In support, the Rome Statute specifically refers to prohibiting war crimes, crimes against humanity, genocide, and the crime of aggression in member states[2].

Moreover, although the ICC is a fully independent entity from the United Nations, the Rome Statute confers an element of power to the Security Council to delay and request investigations by passing resolutions supported by members of the council[3].

2. The relationship between the ICC and Security Council

The considerable powers bestowed in the Security Council by the Rome Statute has left some commentators and academics perplexed. On the one hand, the ICC is described as being independent from any other organisation, capable of asserting its jurisdiction in any member state. Yet, this apparent jurisdiction appears to be undermined by the power afforded to the Security Council. It is this relationship that causes commentators to question the independency of the ICC. Jain draws upon this noting, ‘permitting the Security Council to impinge on the independent operation of the ICC would reduce its authority’[4].  In light of this, it could be argued that the relationship between the ICC and Security Council is merely concerned with upholding political power through its members as oppose to achieving a common ground for justice and peace.

As previously mentioned, the jurisdiction of the ICC is restricted to its member states. However in some instances, the Security Council can request an investigation of a situation in any of its member states. It is widely accepted that the maintenance of international peace and security is the principal objective of the United Nations[5]. In light of this, on the 31st of March 2005, the Security Council used its authority under the Rome Statute and decided to refer the situation in Darfur to the ICC— the first case to be referred. Resultantly, President Al Bashir was indicted for war crimes, crimes against humanity, and genocide for his part in the atrocities that occurred in Darfur.

At first glance, one may rightly submit that the fact that the situation was referred, which resulted in an indictment being issued. Appears to show a corresponding relationship between the ICC and the Security Council to achieve justice and peace. Nevertheless as one might expect, the indictment was met with some criticism internationally by the African Union. It was argued that, ‘the indictment would cause the government to be less likely to cooperate with peace agreements currently taking place in Darfur’[6]. Rodman lends support noting, ‘Article 53 of the ICC's founding Rome Statute allows the Prosecutor to exercise his discretion not to investigate or prosecute if it would not serve the interests of justice…’[7]

To this end, these arguments appear to support the assertion that the relationship between the ICC and Security Council gives rise to friction between the values of peace and justice.  In this respect, although the indictment and eventual arrest of President Al Bashir would serve the value of justice, the same cannot be said for the value of peace and for those who are directly affected by the inhumane violence in Darfur.

Nouwen and Werner assail the Security Councils role stating, ‘there is a lack of commitment by the Security Council to follow up on its referral… although vested with the power to address and take any action in respect of Sudan’s failure to cooperate with the ICC’[8]. On this point, it could be argued that the Security Council’s reluctance to follow up on its referral may be due to the fear of jeopardising any peace negotiations between Government forces and Darfuri rebel movements.

The situation in Darfur presents novel challenges for ICC. It is contended that by ‘indicting the sitting head of a state, the ICC could have an impact on ending the criminal violence in Darfur and thus bringing justice’[9]. It is further submitted, ‘the unwillingness of the Security Council to authorize enforcement is incompatible with the ICC referral because one cannot simultaneously subject the government to criminal scrutiny and non-coercively seek its co-operation’[10].

In light of this one may submit, for the indictment to amount to something of value, as oppose to merely serving as an instrument to name and shame. The Security Council ought to move from a pacific position to a coercive approach in order achieve peace and justice.

Although this solution is laudable, it must not be viewed as a panacea to the friction between the values of peace and justice. Aksar rejects this solution noting, ‘…Darfuri rebel groups have precisely calculated that putting negotiations on hold, would allow the ICC to weakened the opponent to such an extent that they can obtain a peace agreement on their terms’[11].  With this is mind it appears that the relationship between the ICC and Security Council has to an extent been identified as a weakness capable of being exploited, as oppose to a to relationship capable of bringing peace and justice. To this end, as Aksar rightly observes, it may be argued that ‘the surge for peace in Darfur has become a game of negotiations circling around the values of peace and justice between the parties involved in the conflicts’[12]. As a result of this one must appreciate that, if justice is to be served for those accused of committing criminal violence, the chances of prosecuting such individuals will solely depend on whether peace can firstly be achieved.

Conclusion

Aksar’s submissions appear to give a blunt indication of the issues facing the relationship between the ICC and Security Council[13]. Put into context, the race for justice appears to come at a price. The ICC producing arrest warrants for those who bare the greatest responsibility for the crimes in Darfur, will consequently lead to further violence between Darfuri rebel groups and President Al Bashir’s militia and supporters; place holts on any negotiations towards a peace agreement. Given this approach, although the ultimate objective of both entities is the maintenance of international peace, it is likely that the relationship between the ICC and Security Council will continue to give rise to the friction between peace and justice. As a result, it would be reasonable to conclude that the relationship between the ICC and Security Council appears uncertain when tasked to prosecute a sitting head of state. Unsuprisingly the ICC chose to maintain a low profile in regards to the situation in Darfur to minimise interference with any peace processes. As a result, it appears that the ICC’s involvement will, in most cases, coincide with any advances of achieving peace and justice when the Security Council refers a situation.

 

Cedric Tresor

BIBLIOGRAPHY

Table of Legislation

1. The Charter of the United Nations 1945

2. The Rome Statute 2002

Books

1. R. Cryer, H Friman, D Robinson, E Wilmshurst, ‘An Introduction to International Criminal Law and Procedure’ (2007) Cambridge University Press

Secondary Sources

1. Aksar Y, ‘The UN Security and the enforcement of individual criminal responsibility: the Darfur case’ (2006) African Journal of international and Comparative Law

2. Bassiouni M, ‘International Crimes: The Ratione materaie of International criminal law’ (2008) 3 International criminal law 129- 139

3. Condorelli L and Ciampi A, ‘Comments on the Security Council referral of the situation in Darfur to the ICC’ (2005) 3 Journal of international Criminal Justice 590

4. Goldstone R, ‘Catching a War Criminal in the Act’ (2008) A19 New York Times

5. Jain N, ‘A separate law for peacekeepers: The clash the Security Council and the International Criminal Court’ (2005) European Journal of International Law

6. Nouwen S and Werner G, ‘Doing justice to the political: the international Criminal Court in Uganda and Sudan’ (2010) European Journal of International Law

7. Rodman K, ‘Is peace in the interests of justice? The case for broad prosecutorial discretion at the International Criminal Court’ (2009) Leiden Journal of International Law

Other

1. The Rome Statute, signed 17 July 1998 <https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf> Accessed 8 November 2016

2. Reuters, Jean Ping, ‘African Union accuses ICC prosecutor of bias’ (30 January 2011)

<http://www.reuters.com/article/ozatp-africa-icc-idAFJOE70T01R20110130> Accessed 8 November 2016

[1] M Bassiouni, ‘International Crimes: The Ratione materaie of International criminal law’ (2008) 3 International criminal law 129- 139

[2] The Rome Statute, signed 17 July 1998 <https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf> Accessed 8 November 2016

[3] Art 13 Rome Statute

[4] N Jain, ‘A separate law for peacekeepers: The clash the Security Council and the International Criminal Court’ (2005) European Journal of International Law

[5] Art 24(1) of the Charter of the United Nations 1945

[6] Reuters, Jean Ping, ‘African Union accuses ICC prosecutor of bias’ (30 January 2011)

<http://www.reuters.com/article/ozatp-africa-icc-idAFJOE70T01R20110130> Accessed 8 November 2016

[7] K Rodman, ‘Is peace in the interests of justice? The case for broad prosecutorial discretion at the International Criminal Court’ (2009) Leiden Journal of International Law

[8] S Nouwen and G Werner, ‘Doing justice to the political: the international Criminal Court in Uganda and Sudan’ (2010) European Journal of International Law

[9] R Goldstone, ‘Catching a War Criminal in the Act’ (2008) A19 New York Times

[10] L Condorelli and A Ciampi, ‘Comments on the Security Council referral of the situation in Darfur to the ICC’ (2005) 3 Journal of international Criminal Justice 590

[11] Y Aksar, ‘The UN Security and the enforcement of individual criminal responsibility: the Darfur case’ (2006) African Journal of international and Comparative Law

[12] ibid

[13] Aksar (n 11)


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