“I am left with no choice but to hibernate investigative activities in Darfur as I shift resources to other urgent cases” the Prosecutor of the ICC has announced to the Security Council during her 20th report. After many warnings by the Office of the Prosecutor (here, here, here and here), this announcement still comes as a little surprise but even more so as a blow to international criminal justice.

Her decision is due to the Security Councils inaction. As she has stated, “What is needed is a dramatic shift in this council’s approach to arresting Darfur suspects” – a charge that has been repeated throughout the years. The prosecution will now focus on upcoming trials and halt further investigations. This does not mean, however, that the Darfur-situation has come to a close. As soon as the Security Council provides the required support or one of the suspects is arrested (both rather unlikely), the case will be reopened.

The Prosecutor’s reasoning is clear. As Kevin Jon Heller has stated in a blogpost,

I’m quite certain the Security Council would have preferred the Darfur investigation to continue ad infinitum: as long as the OTP is trying to investigate, the ICC will get the lion’s share of the blame for the failure to get Bashir. Now Bensouda has cleverly shifted the terrain, making it clear that the problem is the Security Council, not the ICC. Whether the Security Council will care is an open question — but at least Bensouda will take some of the heat off the ICC regarding Darfur. The last thing the Court needs now is additional bad publicity…

Nevertheless, it’s troubling. When the Security Council referred the situation to the ICC, it was widely applauded for a step that seemed unlikely just three years prior. Now, international criminal justice, the Security Council and the Court have surrendered to international opposition. Omar al-Bashir already presented himself and the Sudanese people as the victors against a colonialist tool to humiliate and subjugate the country.

Whether or not the Prosecutor’s strategy will pay off will be seen in the future. A major obstacle has been China as a permanent member to the Security Council. China has financial interests in Sudan and imports a large share of its oil from the country. In my view, it is unlikely that interests of criminal justice, which have not prevailed in the past, will now suddenly overwhelm the government in Beijing.

This blog will feature an analysis of the 20th report as soon as it becomes available.

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