Don't Defer Justice in Darfur and Do Appoint a Special Envoy Background Information
Under a provision (Article 16) of the Rome Statute, the treaty that established the International Criminal Court (ICC), the United Nations Security Council, acting under its Chapter VII authority to maintain peace and security, can suspend an ICC investigation or prosecution for a renewable period of one year.
On March 4, 2009, the International Criminal Court announced it had issued an arrest warrant for Sudanese President Omar al-Bashir on charges of crimes against humanity and war crimes . It is the first time the ICC has issued an arrest warrant for a sitting head of state. The arrest warrant for President Bashir follows arrest warrants issued by the ICC for former Sudanese Minister of State for the Interior Ahmad Harun and Janjawid militia leader Ali Kushayb. The government of Sudan has not surrendered either suspect to the ICC.
Some in the international community, such as the African Union and the League of Arab States as well as UN Security Council permanent members Russia and China, have called for the Security Council to invoke Article 16 with regard to the situation in Darfur. The request for a deferral could either focus on the specific case against President Bashir or extend to other cases the ICC is investigating in relation to the situation in Darfur. (In addition to the warrants already issued against Ahmad Harun and Ali Kushayb, the ICC Prosecutor has applied for arrest warrants to be issued against three commanders of armed opposition groups operating in Darfur). The deferral could then be renewed annually.
Calls for Article 16 to be invoked to suspend the ICC's work in Darfur started when the ICC Prosecutor first applied for an arrest warrant against Bashir. The request provoked a strong reaction by the League of Arab States, the Organization of the Islamic Conference, and the African Union. The three organizations called for the UN Security Council to defer the ICC's investigation pursuant to Article 16. Proposals to apply Article 16 were subsequently brought before the Security Council in the context of the renewal of the mandate of the African Union-United Nations Hybrid operation in Darfur (UNAMID), which was set to expire on July 31, 2008. Almost half the members of the Council threatened to oppose the renewal of UNAMID unless the resolution included language granting impunity for at least 12 months, but possibly much longer if the deferral were renewed. These efforts were defeated and the UNAMID mission was extended, but with language that indicated the Security Council would come back to the issue of a possible Article 16 deferral.
Then and now, a deferral would leave the Security Council open to permanent blackmail by the government of Sudan, which might threaten a broad range of retaliatory measures, including the resumption of hostilities, if the Security Council were not to renew the deferral. A deferral would also have consequences beyond the situation in Darfur. A deferral would have potentially disastrous effects on the ICC and would risk becoming a precedent in every situation being investigated by its Prosecutor.
Other options exist for the government of Sudan to challenge the admissibility or jurisdiction of the International Criminal Court, without providing for impunity. Under Article 19 of the Rome Statute, the defendants or the government may seek to challenge the Court's jurisdiction on the basis that those charged will be prosecuted before national courts. Indeed, reports from the League of Arab States in fall 2008 indicate that the Sudanese government had agreed to its proposal to establish national courts under regional supervision to address crimes that were committed in Darfur. However, because there are serious flaws in the existing national justice system and other special courts established nationally – including the lack of independence of the judiciary, immunity for high level and government-affiliated perpetrators, failure to investigate and prosecute serious human rights violations, lack of fair trials, and poor treatment of victims – it is unlikely that such an application would succeed.
Amnesty International opposed the inclusion of Article 16 in the Rome Statute on the basis that it allows for political interference by the Security Council in the important work of the ICC to ensure justice, truth, and reparations for the worst possible human rights violations – genocide, crimes against humanity, and war crimes. Accordingly, Amnesty International calls on the members of the Security Council not to obstruct the course of international justice by exercising its deferral powers in any case.
Amnesty International believes that justice is essential to ensuring meaningful and lasting peace and implementing the rights of victims in situations where serious human rights violations have been committed. The Security Council discussion undermines efforts to ensure justice, truth, and reparations for the horrific crimes which have been committed and continue to be committed today.
Amnesty urges the Security Council to commit to working for an end to the serious human rights violations in Darfur, in particular through the effective operation of UNAMID and to ensuring justice through supporting the work of the International Criminal Court and demanding Sudan's full cooperation.
The United States Could Play a Crucial Role in Blocking a Deferral
AIUSA is currently focusing its efforts in this regard on the United States, which has emerged as a strong voice in support of justice for Darfur in the Security Council. Despite its decision not to join the ICC, the U.S. has indicated that it values and supports the ICC's work in Darfur. In 2005, the United States opted to not block a UN Security Council vote to refer crimes committed in Darfur to the ICC Prosecutor for investigation. In subsequent years, U.S. officials stated that the United States stands ready to assist the Court in its investigation. Then, in July 2008, the United States abstained from the Security Council's vote to renew the UNAMID mission in Darfur, on grounds of opposition to any language that would undermine efforts to bring President Bashir and others to justice. U.S. Deputy Ambassador Alejandro Wolff stated that deferring the investigation and prosecution under Article 16 "would send the wrong signal at a very important time when we are trying to eliminate the climate of impunity." In January of this year, according to a text provided by the U.S. mission, the current U.S. Ambassador to the United Nations, Susan Rice, stated that the ICC "looks to become an important and credible instrument for trying to hold accountable the senior leadership responsible for atrocities committed in the Congo, Uganda and Darfur."
Amnesty International is calling on the U.S. to hold firm on its stated position against a deferral and to work within the Security Council to ensure that Article 16 is not used to defer the ICC's investigation in Darfur.
About the International Criminal Court
The ICC, created in 1998, is the world's first permanent international criminal court. The situation in Darfur was referred to the Court by the Security Council in March 2005, and the ICC Prosecutor opened a formal investigation in June 2005. The ICC's arrest warrant for President Bashir follows the previous arrest warrants issued for former Sudanese Interior Minister Ahmad Harun and Janjawid militia leader Ali Kushayb. Both men remain at large.
