Background Information on the ICC and Darfur

The July 14, 2008, application of the Prosecutor of the International Criminal Court (ICC) requesting that the ICC’s Pre-Trial Chamber issue an arrest warrant against Sudanese President Omar al-Bashir provoked a strong reaction by the League of Arab States, the Organization of the Islamic Conference and the African Union.

Despite the fact that the Pre-Trial Chamber has not yet decided whether to grant an arrest warrant for President Bashir, the three organizations made calls for the United Nations Security Council to defer the ICC’s investigation and prosecution pursuant to Article 16 of the ICC’s statute (known as the “Rome Statute”). Proposals to apply Article 16 were subsequently brought before the Security Council in the context of the renewal of mandate of the African Union-United Nations Hybrid operation in Darfur (UNAMID), which was set to expire on July 31. 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 is renewed.

These efforts were defeated and the UNAMID mission was extended, however with language that indicated the Security Council will come back to the issue of the Article 16 deferral shortly. The request for a deferral could either focus on the specific case against President Bashir or extend to all cases and investigations conducted by the International Criminal Court in Darfur. This deferral could then be renewed annually.

Under Article 16 of the ICC’s statute, the UN 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.

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 Court to ensure justice, truth and reparations for the worst possible human rights violations – genocide, crimes against humanity and war crimes. Accordingly, Amnesty International in all cases calls on the members of the Security Council not to obstruct the course of international justice by exercising its deferral powers.

In the case of Darfur, 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 to end the deferral and the Court were to resume consideration of the request for an arrest warrant. A deferral would also have consequences beyond the situation in Darfur. A deferral would have potentially disastrous effects on the Court 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 indicate that the Sudanese government agreed to their 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 non-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 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 in the Security Council has emerged as strong voice in support of justice for Darfur. Despite its decision not to join the ICC, the U.S. has continued to shift in favor of the Court’s work on 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 of this year, the United States abstained from the Security Council’s vote to renew the UNAMID mission in Darfur, on grounds of opposition to any language which would undermine efforts to bring President al-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.”

Amnesty International is calling on the U.S. to hold firm on this position and 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 Prosecutor opened a formal investigation in June 2006. The Prosecutor’s application for an arrest warrant for President al-Bashir follows from the previous indictment of former Sudanese Interior Minister Ahmad Harun and militia leader Ali Kushayb. Both Harun and Kushayb remain at large. The Pre-Trial Chamber will issue an arrest warrant for President al-Bashir if it determines there are reasonable grounds to believe he has committed the alleged crimes. A decision on an arrest warrant usually takes six to eight weeks.