Ebenso lesenswert ist die Analyse zur UNMISS, die ebenfalls auf den Seiten des ZIF zu finden ist.

Today, Rwanda has reiterated its invitation to the Sudanese President, who is supposed to attend an AU summit in Kigali starting tomorrow. Even though Rwanda is not a state party to the ICC and consequently under no obligation to arrest the president, it shows the respect that states have for the ICC, which at least in most parts of Africa is not-existent.

The UN Security Council will probably ignore the communications referring to Uganda and Djibouti and it will most likely ignore al-Bashir’s attendance of the AU-summit.

As always, the Prosecutor laments on the Council’s inaction and even ignorance of the ICC’s concerns. Not only is the Council still failing to enforce outstanding arrest warrants, the Council has yet to respond to the ICC’s communications. These refer to failures by state parties to fulfil their obligations under international law. Most prominently, the Prosecutor reports on the aftermath of the unfortunate incident in South Africa last year (here and here). In March 2016, the Supreme Court of Appeal had issued a judgement, in essence upholding a prior condemnation of the governments refusal to fulfill its legal obligations (a review of the Supreme Court of Appeal’s judgement will follow on these pages). The dreadful event in South Africa has not hindered Omar al-Bashir from traveling freely. This includes visits to Djibouti and Uganda – both state parties to the ICC-Statute – as well as non-state parties.

With regard to the Banda-trial, which had been postponed indefinitely (here and here), the Prosecutor can only repeat that there is no new date for a trial. Banda is still on the loose and not likely to appear in The Hague. The OTP monitors ongoing events in Darfur, even though new investigations are not being opened (here, here and here). The Prosecutor cites several incidents in which casualties have been reported, allegedly also by the Sudanese Rapid Support Forces. Whether or not any proceedings will be opened seems to depend on the actions by the Security Council. And because the Council fails to act, it is likely that no new investigations will be opened in the Darfur-situation.

After her briefing, the Council’s members answered. To no surprise, nothing new was stated. Some states reiterated their opposition to the Court while other members reiterated their support for the Court and joined the Prosecutor in her calls for support. As stated, however, no member state took action. And as usual, the Sudanese representative reacted to the report with the old responses of imperialism, injustice, illegality and the fact that the Darfur-situation demands a peaceful solution to be found within a political process. It is noticeable that the Prosecutor and the Sudanese representative had a bigger clash than in past briefings, even if the hostility has not reached the heights of June 2012, when the predecessor of the current Prosecutor and the Sudanese representative had a major and very personal clash (here).

Again, a report of the OTP illustrates the shortcomings of the Darfur-situation and highlights the need to act. And yet again, the Council fails to act and it will continue to fail. In December 2016, when the 24^th report is due, the report will most likely contain the same aspects, with minor changes in detail.

The Security Council is long aware of the deteriorating situation in Darfur. When the ICC prosecutor reported on the deteriorating situation in Darfur last December (here), she illustrated the situation by detailing incidents involving possible crimes. In Januar 2016, UNAMID reported back to the Council, also outlining a worsening situation (here). In addition, calls to postpone a scheduled referendum in April are publicized on an almost daily basis (here also).

Consequently, the Security Council determined that the “situation in Sudan constitutes a threat to international peace and security”.

With res. 2265 (2016), the Council extended the mandate of the panel of experts created by res. 1591 (2005) until March 2017. The panel is tasked to report to the Council and update it on recent developments. Fulfilling this task the experts regularly report a lack of cooperation by Sudan and other states – something that experts, who are not members of the panel, agree with.

As in the past, the Security Council did not address this situation in a meaningful way. No further measure was taken by the Council except the extension of the mandate. With regard to the arms embargo, travel bans and targeted sanctions, the Security Council expresses its concern for the lack of cooperation by Sudan and other states. It reminds the states of their obligations to fulfill previous resolutions.

In short, res. 2265 (2016) brings nothing new except an extension of the mandate of the panel of experts.

However, with the 20^th report of the Prosecutor being delivered in December 2014 and marking the start into 2015, the prospect of a good year for the Darfur-situation was already dark. In said report, the Prosecutor announced a halt to further investigations into Darfur (here). She cited the missing support by the Security Council as a major drawback in the ICC’s efforts with regard to Darfur. In 2015, the Security Council was not impressed by her outcry and continued to ignore the calls for help. This is evident from the new 22^nd report of the OTP to the Security Council. In detail, the Prosecutor highlighted the following points.

Omar a-Bashir’s travels

Unsurprisingly, Sudan’s head of state Omar al-Bashir continues to travel freely. 2015 was marked by a failed attempt to arrest him during an African Union summit in South Africa (here and here). Still, the second half of 2015 had al-Bashir travel to Mauretania, China, South Sudan, Algeria, Ethiopia, Saudi Arabia, Pakistan, India and the United Arab Emirates. Not one of these nine states is a state party to the ICC; thus, they are not obliged to arrest al-Bashir. Nevertheless, the referral by the Security Council asked non-member-states to cooperate with the ICC. With regard to the defiance by South Africa in the summer of 2015, this member state is currently asked to detail the domestic judicial proceedings surrounding the AU summit. Whether or not something helpful will come out of that remains to be seen.

Lack of cooperation

As usual, two key actors refuse to cooperate with the ICC, rendering its efforts useless and hampering the enforcement of international criminal justice.

First, Sudan is still not cooperating with the Court. Albeit obliged to do so by Security Council res. 1593 (2005), Sudan is not willing to fulfill its obligations under international law. This is nothing new and it does not need to be stressed further.

As an interesting side note, the Sudanese representative has cited the November 2015 Paris Climate Change Conference and its impact on the conflict in Darfur. With climate change being one cause for the deterioration of the situation in Darfur, he highlights the need for a comprehensive approach. While the representative has a point, other factors are more essential. While climate change has contributed to clashes between different groups of people in Darfur, the real driving forces behind the conflict are not natural forces, but politics and policies. This, of course, is withhold by the Sudanese representative.

Second, the Security Council is still not willing to back up its referral. In spite of numerous of its own resolutions and several and regular cries for help by the ICC, the Court’s submissions to the Council continue to be ignored. Communications received by the Council are not answered. Within the debate following the report by the Prosecutor, states were reluctant to promise more support. Even France, a long-term supporter of the ICC, prioritizes other aspects of the conflict before addressing the lack of support. It seems as if the Council’s member states have lost their faith in international criminal justice (which is due to its own failure to act).

Further activities

As she promised earlier (here) the Prosecutor monitors ongoing events in Darfur. Within the last six months there have been aerial attacks in Darfur, gender-based crimes and crimes against peace-keepers. The Prosecutor specifies in her report that nobody really knows how many of these crimes are due to the conflict between the government and rebel forces or to intertribal clashes. Unfortunately, these events will not be investigated any further until more support is granted by the international community.

The Prosecutor adds that eight victims of alleged crimes have withdrawn from the al-Bashir case, citing a confidential settlement. She is eager to point out that her office is not abandoning the victims and continues to call for arrest and surrender of those allegedly responsible for the crimes.

Remarkably, the report is silent on the incident at Tabit. Whatever happened there will probably never be known (more here). Finally, the case against Abdallah Banda is not moving forward. A new starting date has not been set and Banda is still on the lose.

Summary

In the end, the 22^nd report does not bring anything new. The situation is still on hold due to the Sudan and the Security Council continuing to ignore the ICC. One does not need to be a prophet to foresee that the 23^rd report due in June 2016 will include the same areas of concern, the same lack of cooperation by Sudan and the same lack of support by the Security Council.

The report comes after a diplomatic brawl over an attempt to arrest Omar al-Bashir during an African Union summit in South Africa (more in analysis no. 15).

The failed attempt to arrest Omar al-Bashir

In June 2015 the AU held a summit in South Africa. Omar al-Bashir, the president of Sudan, was representing his state at the summit. Despite two arrest warrants by the ICC on accounts of war crimes, crimes against humanity and genocide, al-Bashir enjoys the support of many African states, including the AU which has repeatedly criticized the ICC’s policy with regard to Africa. He travels freely throughout the continent. In light of that history, it is not surprising that the president visited the AU summit.

Still, South Africa is a state party to the ICC-statute. As such, there is no doubt that South Africa is under an obligation to arrest Omar al-Bashir. This has not only been hold by several non-governmental organizations, but by the ICC as well: The ICC had consultations with South African Officials in which the obligation of South Africa to arrest Omar al-Bashir was discussed. (Registry Report on the consultations undertaken under Article 97 of the Rome Statute by the Republic of South Africa and the departure of Omar Al Bashir from South Africa on 15 June 2015, ICC-02/05-01/09-243).

In addition, a domestic court found clear words for the South African government. After the North Gauteng High Court in Pretoria found the government of South Africa under a domestic obligation to arrest Omar al-Bashir, Sudan’s president managed to board a plane and leave the country for Sudan. In the end, it is evident that the South African government’s failure to act constitutes a violation of the Rome Statute (cf. here).

No immunity for Omar al-Bashir

Also, Omar al-Bashir has as a sitting head of state no immunity from criminal prosecution. Customary international law may provide for such a immunity. However, for state parties to the Rome Statute, art. 27 removes this protection. Sudan, a non-member state, is not bound by art. 27 Rome Statute and thus al-Bashir is not stripped of his immunity by this provision. However, being a member state of the UN, Sudan must adhere to chapter VII-resolutions of the UN Security Council. The UN Security Council removed his immunity by Res. 1593 (2005), which referred to the Rome Statute (cf. here)

Troubling is the stance of several members of the Security Council, including permanent members of the Council as well as elected members and state parties to the ICC-statute, who maintain that al-Bashir is immune from the ICC’s prosecution. In this sense, their view is simply incorrect and Omar al-Bashir does not enjoy immunity from the ICC’s jurisdiction.

It comes to no surprise that the Sudanese government failed to arrest Omar al-Bashir and Abdel Raheem Muhammad Hussein, the Sudanese minister of defense. With regard to al-Bashir, the Court already issued a decision, holding that the non-compliance violates international obligations of Sudan. With regard to Hussein, the decision is pending.

In this sense, the report does not report any news.

Banda-Trial postponed indefinitely

The Prosecutor is also not able to report any news in the Banda-case. He is still on the run and a date for the trial has not been set (cf. here).

Continued hibernation in light of ongoing violence

In her last report the Prosecutor announced a halt to all investigations in Darfur. In the present report, she details her strategy a little more: Resources of the OTP are allocated to prioritized cases that are more advanced. With regard to Darfur, not a single case is likely to be tried in the near future. However, the OTP continues to monitor the situation in Darfur, focusing on recent crimes and even interviewing witnesses to safe their testimony.

This is in part due to the ongoing violence in Darfur, as the Prosecutor reports. Until today, the Rapid Support Forces (RSF), a paramilitary unit, are committing crimes in Darfur. The Prosecutor names three individuals allegedly somehow responsible. Among them are two RSF-leaders, Major General Abdual-Aziz and commander Mohamed Hamdan Dagolo, known as “Hemeti”, and the National Intelligence Security Service’s (NISS) General Ali al-Nasih al-Galla. Hemeti has been in the focus of the OTP for quite some time and was mentioned in the Prosecutor’s 19^th report a year ago.

Of course, during the debate after the Prosecutor gave her report to the Security Council, the Sudanese representative denounced these claims. He even went so far as to re-address the legitimacy and legality of SC Res. 1593 (2005).

(No) Mass rape in Tabit?

Suspiciously, any reference to the alleged mass rape in Tabit is missing from the OTP’s report (cf. here and here). The sole representative regularly referring to the incident is the UK representative. When the Security Council extended the mandate of UNAMID with Res. 2228 (2015) on the same day as the Prosecutor delivered her report, the UK representative reiterated her countries worries about the incident (and she was supported by the US representative). The Sudanese representative, quite the reverse, denounced these allegations and labeled the accusations an “information war” by “certain players to scale up pressure on the Sudan.”

Persistently ignoring the ICC

Not surprising, but disturbing is the persistent neglect of the Darfur-situation by the Security Council. Six months after the Prosecutor’s surrender to the unwillingness of the Council, its members seem happy with the situation. Even tough some members call upon the Council to act, no one undertakes credible steps. For the nearly 1.200 victims of the crime in Darfur since the beginning of 2015, the Security Council is still a disappointment.

The 20^th report of the prosecution to the Security Council is basically limited to issues already known. In addition to the aforementioned announcement, other developments complicate the ICC’s work.

Banda-Trial postponed

The trial against Banda was supposed to begin in May, however, Trail Chamber IV postponed the commencement until 18 November 2014 (here). Still, this date was not realizable as well. When the Trail Chamber IV issued a warrant of arrest for Banda (more will follow in this blog), the Chamber simultaneously vacated the set date and postponed the begin until his arrest or voluntary appearance. This is also due to the unwillingness of Sudan to cooperate with the Court.

The Prosecutor gives one example which speaks volumes: In July 2014, the Court requested Sudan to cooperate and to facilitate Banda’s appearance before the Court. Sudan is by international law, namely by Security Council resolution 1593 (2005), bound to cooperate with the ICC. This being the case, the request to cooperate by the ICC did not impose new obligations on Sudan. Coming back to the example, Sudan returned the envelope with the written request unopened to the Court. The disrespect for the Court as well as the Security Council could not have been expressed more pretentiously. Unfortunately, while the ICC cares, the Security Council has forsaken the Court and is once again not interested in successful international criminal justice.

Omar al-Bashir’s Travels

This is clear from the Council’s reluctance to address the issue of non-cooperation by other states. More specifically, state parties to the ICC-Statute are bound to cooperate with the Court. In particular, those states are under an obligation to arrest persons wanted with an arrest warrant by the ICC. Omar al-Bashir, Sudan’s president, is one of those persons. Nevertheless, he travels freely throughout Africa and even African state parties to the ICC decline any request for help by the ICC. This is not new. It is also not new that the Security Council does not support the ICC. Moreover, the communications sent by the ICC to the Council, addressing instances of non-compliance with the Council’s own resolution, are ignored. The ICC still awaits responses to its letters.

The statements by the member’s of the Security Council after the OTP’s report are hypocritical. Some representatives concede that answers are necessary. However, nothing has been done in order to answer the requests. It seems highly unlikely that this will happen in the future.

Alleged Mass Rape in Tabita and UNAMID-reporting

“The recent allegations of rape of approximately 200 women and girls in Tabit should shock this Council into action.” With these clear words the Prosecutor addressed the Security Council and its “concerns” regarding the humanitarian situation in Darfur. The answer of the Council? Some members deny the facts and maintain that no evidence has been found to support this claim. Other members point out that no independent inquiry took place, because the Sudanese government did not grant access.

This comes in addition to alleged flawed reporting by UNAMID. The mission has been criticized for taking sides in the conflict and shielding government officials from prosecution (based on a series of three articles by Foreign Policy: 1, 2 and 3). The Prosecutor addresses the issue only briefly, referring to a report prepared for the Secretary General (here). The report found no evidence “to support the allegation that UNAMID had intentionally sought to cover up crimes against civilians and peacekeepers.” However, the report also found that in several instances UNAMID did not provide UN Headquarters with all information about the incidents. (To be fair to the Security Council, when it renewed UNAMID’s mandate until summer 2015 by resolution 2173 (2015), it welcomed the Secretary Genereal’s announcement to investigate said allegations.)

Grim Outlook on the 21^st report

It does not take a crystal ball to have a grim outlook on the next report. After all, we have seen what happens after the prosecution begs for support in New York. In June 2015 the OTP will once again lament on the lack of cooperation by Sudan and other states, the Security Council’s unwillingness to address instances of non-cooperation as well as the further postponement of trials and execution of arrest warrants. That the OTP continues to monitor alleged crimes in Darfur does not brighten the outlook and it does certainly not help the people in Darfur.

Media-coverage vs. UN-statements

Interestingly enough, while news outlets put the news straight (New York Times: “Prosecutor halts Darfur inquiry“, Washington Post: “ICC prosecutor stopping Darfur investigations“, al Jazeera: “ICC prosecutor halts Darfur war-crimes probe“), the UN is somewhat ashamed. The UN news centre headlines “Security Council inaction on Darfur ‘can only embolden perpetrators’ – ICC prosecutor” and the meetings coverage of the Security Council captions the meeting with “Amid Growing Brutality in Darfur, International Criminal Court Prosecutor Urges Security Council to Rethink Tactics for Arresting War Crime Suspects“.

Second serious blow to OTP

Just a few days earlier the OTP had to close the investigation against Uhuru Kenyatta because it could not provide evidence as required by the Pre-Trial-Chamber in order to proceed with the case.

Presidency of the Security Council

It renders the stop in the Darfur-situation delicate that the Presidency of the Security Council during December is held by Chad, a country neighbouring Darfur and, although a state party, refusing to cooperate with the ICC.