Non-compliance with Rome Statute obligations becoming common place – Al-Bashir in Chad … again
August 11, 2011
Richard Goldstone believes that “the most serious threat to the credibility, and indeed the very essence, of the Tribunals has come from politically inspired delays in the arrest of indicted war criminals.” Indicted Sudanese president, Omar al-Bashir, is testament to this statement. In the past year he has certainly put his passport to good use. Last weekend al-Bashir made yet another ‘arrest free’ trip to Chad, a signatory to the Rome Statute of the International Criminal Court (ICC). Why are African states parties to the Rome Statute so willing to receive a man that places them in direct conflict with their obligations? In simple terms, perhaps it’s because they can, with repercussions amounting to nothing more than a verbal slap on the wrist and the African Union (AU) supporting and encouraging inaction, the incentive to comply appears to be lacking. I imagine Chad’s invitation to al-Bashir to attend President Idris Deby’s inauguration going a little something like this:
Dear President al-Bashir,
It was great seeing you in Chad last year. This weekend I am having my inauguration, yes, I won again. It just wouldn’t be the same without you. I hope you can make it.
The President of Chad
P.S I know we’re supposed to arrest you, but don’t worry, we won’t. I mean what’s the worst that can happen if we don’t? – Civil society will kick up a fuss, the ICC will shout at Chad and the EU will be disappointed – Been there done that! Plus it’s totally okay with the African Union.
The Chad trip, the latest installment in the jet setting antics of this Sudanese despot, once again raises questions about Africa’s support for the ICC and, perhaps more importantly, in the face of Africa’s increasing resistance to the ICC, the need to address the issue of non-compliance with the Rome Statute. Since his indictment, al-Bashir’s mini-breaks have taken him to Chad, followed by Kenya, to attend the promulgation its new Constitution in August 2010, Djibouti in May 2011, to attend the inauguration of president Anullah and most recently his second visit to Chad. Four lost opportunities to secure his arrest. In June this year he also travelled to China where calls to arrest him were ignored (which is odd because China voted in favour of the Security Council Resolution referring him the ICC in the first place).
All trips were, for the most part, met by firm international rebukes calling on Chad, Kenya and Djibouti to give effect to their obligations under the Rome Statute by arresting al-Bashir. Chad and Kenya were also reported by the ICC to the Security Council and the Assembly of States Parties to the Rome Statute (ASP), the ICC called on them to take “any measure that they deem appropriate”. The AU unsurprisingly, subscribing to the notion of African solutions to African problems, has continued to call for African non-cooperation with respect to the arrest of al-Bashir as well as the ICC processes in respect of Kenya’s post election violence and the Libyan arrest warrants. The AU will most probably praise Chad for its commitment to peace and security in the region.
Let us focus on Chad, a repeat offender in the non-compliance department and representative of a number of African countries. What should be done when a state fails to discharge its international obligations? From an objective point of view, the solution should be simple – Punish Chad, and any other country for that matter, for breaking the rules. But given the politically sensitive relationship between the AU and the ICC, a harsh approach may not be conducive to securing Africa’s wavering support.
In terms of Article 87(7) of the Rome Statute provides that where-
“a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under 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.”
The ICC can therefore refer a recalcitrant state’s non-cooperation to the ASP or the Security Council (where it referred a matter to the ICC in the first place) as it did with Kenya and Chad. The Security Council and the ASP can then take any “any measure they deem appropriate”. The Rome Statute unfortunately doesn’t go any further than this. Certainly a little vague, we must ask ourselves what is appropriate. Perhaps chastisement for a first time offence is appropriate, but certainly a repeat offender should not get off as lightly?
Ideally, cooperation should be secured domestically. For example in South Africa, in anticipation of al-Bashir’s attendance at President Jacob Zuma’s innaugaration SALC prepared legal papers to ensure that if al-Bashir came to South Africa, the courts would order his arrest. A similar initiative was undertaken in Kenya in anticipation of a second visit – a visit that was subsequently cancelled. However in both Kenya and South Africa domestic implementing legislation is in place making it somewhat easier to enforce obligations, and this is not the case in the rest of Africa.
Perhaps it’s time for the ASP and the Security Council to re-think how it is going to deal with non-cooperation more effectively. It is abundantly clear that encouragement and chastisement have done little to secure cooperation in respect of the al-Bashir’s arrest. The fact of the matter is that on four occasions cooperation has not been forthcoming and this sets a very worrying precedent, especially in Africa. It is also a very real possibility that similar stances will be adopted in relation other situations on the continent. In a system that depends on cooperation, the failure to address this issue seriously threatens the ability of the ICC to carry out its mandate.
As ICTY Prosecutor Gavin Ruxton pointed out, “[t]he arrest process lies at the very heart of the criminal justice process: unless the accused are taken into custody, we will have no trials; no development of the law by the courts; and ultimately, no international justice.”