The Dog That Didn’t Bark
by Neha Bhat
In March 2005, the UN Security Council (UNSC) referred the Darfur ‘situation’ to the International Criminal Court (ICC), making it the first referral of its kind. UNSC Resolution 1593 was adopted under Chapter VII of the UN Charter with 11 votes in favor, and 4 abstentions. The Resolution was hailed as a major step towards strengthening the fight against impunity for the ‘crimes against humanity’ committed in Darfur against the indigenous Fur, Zaghawa and Massalit tribes.
Pursuant to Resolution 1593, the ICC opened preliminary investigations into the Darfur ‘situation’ and on July 14, 2008, then ICC Prosecutor Luis Moreno-Ocampo filed an application for issuance of warrant of arrest for Omar Hassan Ahmad Al-Bashir (Al-Bashir), the sitting President of Sudan, before the Pre-Trial Chamber I (PTC I). The first warrant of arrest against Al-Bashir was issued by the PTC I on March 4, 2009 covering murder, torture, rape, and intentionally directing attacks against the civilian population. On a subsequent application filed by the Prosecutor’s Office, a second warrant of arrest against Al-Bashir was issued by the PTC I on July 12, 2010 on three counts of genocide.
Image Courtesy: International Justice Project
However, a decade after the adoption of Resolution 1593, and six years since the issuance of the first arrest warrant against him; not only has Al-Bashir not been arrested, but the lack of progress towards his arrest prompted ICC Prosecutor Fatou Bensouda to suspend investigation into his case as of December 2014. In her statement to the UNSC on December 12, 2014, Bensouda stated
… In the almost ten years that my Office has been reporting to this Council, there has never been a strategic recommendation provided to my Office, neither have there been any discussions resulting in concrete solutions for the problems we face in the Darfur situation. Faced with an environment where my Office’s limited resources for investigations are already overstretched, and given this Council’s lack of foresight on what should happen in Darfur, I am left with no choice but to hibernate investigative activities in Darfur as I shift resources to other urgent cases, especially those in which trial is approaching. It should thus be clear to this Council that unless there is a change of attitude and approach to Darfur in the near future, there shall continue to be little or nothing to report to you for the foreseeable future…I remain open to constructively engage with the Council on the Darfur issue…What is needed is a dramatic shift in this Council’s approach to arresting Darfur suspects… In that regard, I call on all States and this Council to find creative ways to support those amongst them that may be most vulnerable to planned visits by Mr. Omar Al Bashir or other individuals against whom warrants of arrest have been issued. (emphasis added)
As of date, Al-Bashir has travelled unobstructed to 18 countries, demonstrating flagrant disregard for not only the 2009 & 2010 ICC arrest warrants against him, but also vitiating Resolution 1593 in the process. The countries to which Al-Bashir has travelled include Chad, China, Democratic Republic of Congo, Djibouti, Egypt, Eritrea, Ethiopia, Iran, Iraq, Kenya, Kuwait, Libya, Malawi, Nigeria, Qatar, Saudi Arabia, South Africa, South Sudan. On several occasions, preceding these visits, the ICC Prosecutor’s office has requested the Pre-Trial Chamber II (PTC II) to seek execution of the arrest warrants against Al-Bashir, whether pursuant to Rome Statute obligations or Resolution 1593. However, as the PTC II has repeatedly pointed out in its decisions
…the Court has no enforcement mechanism and thus relies on the States’ cooperation, without which it cannot fulfil its mandate and contribute to ending impunity.
PTC II has regularly invited countries to exercise their authority and execute the arrest warrants issued against Al-Bashir, although its efforts have not met with any success. While many commentators have spoken of ICC and international criminal law’s failure in bringing Al-Bashir to justice; it is well established that without stronger enforcement powers, ICC is ill equipped to do so. Despite which, it speaks to ICC’s deterrence impact (however minimal) that Al-Bashir’s travel is largely restricted to ‘friendly’ African, and Gulf countries—and on occasions, he has been compelled to reconsider his travel plans due to impending possibility of being arrested, or cut short his visits, like in the case of Nigeria (2013) and South Africa (2015). In addition, various countries have declared that they would arrest Al-Bashir and surrender him to the ICC, should he enter their territory.
Al-Bashir’s latest travel to South Africa for the African Union Summit 2015, undoubtedly demonstrates afresh ICC’s weakness in the arena of enforcement. However it also acutely highlights the lack of initiative on part of the UNSC to facilitate Al-Bashir’s arrest. And in our parallel narration of the Silver Blaze, UNSC is that watchdog. That hasn’t barked despite being well aware of the vitiation of Resolution1593.
Image Courtesy: Stop Genocide Now
It is apparent, given the opposition of United States and China and their subsequent abstentions during the voting, that Resolution 1593 was, for all it’s worth a “compromise” resolution. Additionally, compared to previous UNSC experience in establishing ad-hoc criminal tribunals, the Darfur referral was, simply stated, a disappointment. First, whereas UNSC Resolutions establishing the International Criminal Tribunal for Former Yugoslavia and Rwanda required mandatory cooperation of all UN Member States with the ad-hoc Tribunals; in referring the Darfur situation to the ICC, the UNSC merely “urged” Member States to cooperate with the ICC, not requiring mandatory compliance with this requirement. Second, at the urging of the United States, Resolution 1593 categorically rejected provision of any financial assistance to the ICC, should it pursue investigations and prosecutions in furtherance of Resolution 1593; unlike the Tribunals for Former Yugoslavia and Rwanda, where budgetary allocations were made possible from the UN Budget and considered as the “Organization’s expenses” under Article 17 of the UN Charter. Moreover, Resolution 1593 incorporated reference to Article 98(2) of the Rome Statute in its preambular paragraph as well as prohibited UN peacekeeping personnel and other similarly placed officials from being prosecuted by the ICC pursuant to the Darfur referral. Finally, Resolution 1593 also incorporated a preambular reference to Article 16 of the Rome Statute, which allows the UNSC to promulgate a Chapter VII resolution to seek deferral of initiation of investigations and/or prosecutions by ICC for a period of 12 months.
Despite the teething troubles, Resolution 1593 was largely considered to be a positive step towards enforcement of international justice, and enhanced the reputation of the ICC. However an examination of UNSC practice since promulgation of Resolution 1593 demonstrates that the UNSC has done precious little to secure both, cooperation (from Member States) and compliance (from Sudan) despite mandating the same in unequivocal terms in Resolution 1593 that the Government of Sudan and all other parties to the conflict in Darfur, shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor… States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully; leaving the ICC to fend for itself in a largely antagonistic environment knowing very well that the ICC did not have necessary means and methods to redress the grievances against it.
The lack of UNSC initiative is noteworthy when one considers that Resolution 1593 was promulgated in exercise of UNSC powers to address situations classified as a “threat to international peace and security,” which often carry mandatory obligations. As far as Sudan is considered, pursuant to Articles 25 and 48 of the UN Charter, Resolution 1593 does bind the Sudanese government to compulsorily implement the said Resolution and cooperate with the ICC. Sudan’s refusal to honor the obligations imposed on it by Resolution 1593 should have invited comprehensive sanctions (on travel, financial and other assets abroad etc.) for Sudanese government officials under Article 41 of the UN Charter. However, no such action has been undertaken till date against Sudan, giving rise to questions about UNSC’s sincerity about pursuing justice in Sudan for conduct that it has self characterised as “crimes against humanity” in Resolution 1593.
Similarly, Resolution 1593 also unequivocally binds UN Member States party to the Rome Statute of the ICC to arrest Al-Bashir. In ideal circumstances, vitiation of Resolution 1593 by UN Member States who are also members to the Rome Statute should, in the very least, invite a potential warning of an impending sanction, if not an actual sanction from the UNSC. However, as has been the case with Al-Bashir’s well publicized visit to South Africa last week and his visits over the past four years to other UN Member States also party to the Rome Statute viz. Chad, Democratic Republic of Congo, Djibouti, Kenya, Malawi, and Nigeria; the UNSC has neither called upon these countries to honor their obligations under the Rome Statute and Resolution 1593 nor condemned their failure to do so. In fact, on two occasions, in 2010, when Al-Bashir travelled to Chad and Kenya, ICC referred the matter to UNSC for appropriate action against the two countries, but none was forthcoming. Even with respect to UN Member States not party to the Rome Statute, the UNSC could, in the very least, have reiterated the necessity to cooperate with the ICC in the Darfur proceedings through use of soft diplomacy channels. However, given UNSC’s apathy to enforce Resolution 1593 against Sudan and other Member States on whom binding obligations were cast; the lack of UNSC initiative against Member States on whom Resolution 1593 doesn’t cast binding obligations is hardly surprising.
The story however doesn’t end there. Since the promulgation of Resolution 1593 there has been no UNSC Resolution that calls upon Sudan and/or other Member States to cooperate with the ICC investigations, despite reports being submitted by the ICC Prosecutor’s Office every six months to the UNSC in this regard and despite two specific requests made by the ICC in this regard in 2010. Poignantly, UNSC’s only “direct” reference to ICC investigations in Darfur was in 2008, after Prosecutor Moreno-Ocampo requested issuance of arrest warrant against Al-Bashir. The African Union and the Organization of Islamic States demanded that the UNSC exercise powers under Article 16 of the Rome Statute and direct ICC to defer its Darfur investigations by at least 12 months. It is reasonably logical that Article 16 is not intended for use by the UNSC in cases where ICC investigations have been initiated based on a Chapter VII Resolution promulgated by the UNSC. Not only should such references have been omitted from Resolution 1593, a discussion on the said issue should not have been promoted under the auspices of the UNSC. Nevertheless, a discussion on the proposal did indeed take place prior to promulgation of Resolution 1828 which was eventually defeated after the United States, United Kingdom and France expressed opposition to the same. Nevertheless, UNSC Resolution 1828 did refer to the future possibility of an Article 16 deferral request vis-à-vis ICC’s Darfur investigations.
What is perhaps more ironic than all the discussion above is that six of the 18 countries that have refused to execute arrest warrants against Al-Bashir have gone on to become non-permanent members of the UNSC since the adoption of Resolution 1593! Furthermore, of these seven countries, five are party to the Rome Statute as well and have allowed access to Al-Bashir post the issuance of the first ICC arrest warrant in 2009. These countries are Qatar (2006-2007), Democratic Republic of Congo (2006-2007), South Africa (2007-2008, 2011-2012), Libya (2008-2009), Nigeria (2010-2011, 2014-2015) and Chad (2014-2015). In raising this issue, the idea is to bring to attention the fact that as per Article 23 of the UN Charter requires that in election of the non-permanent members of the UNSC “due regard” be paid, in the first instance to the contribution of Members… to the maintenance of international peace and security and to the other purposes of the Organization. Some other factors which are said to be taken into consideration during election of non-permanent members to the UNSC include (i) troop contribution to UN Peacekeeping operations, peacekeeping experience and record (ii) geographical and demographic representation (see also GA Resolution 1991 (XVIII)) (iii) experience in international leadership (iv) financial contribution to UN Budget (v) domestic insecurity (vi) current campaign for other UN offices. Again, this begs the question as to why the UNSC didn’t highlight the lack of compliance with ICC arrest warrants against Al-Bashir as factors negatively impacting the bid for non-permanent seats in the UNSC, especially in the case of South Africa, Nigeria and Chad—when it appears that UNSC had the authority to do so under the UN Charter.
The silence of UNSC on ICC and its Darfur investigation has been long, and unhelpful. No wonder then that on March 9, 2015, the Pre-Trial Chamber II in its unanimous decision on the Prosecutor’s Request for a Finding of Non-Compliance against the Republic of Sudan, observed
When the SC, acting under Chapter VII of the UN Charter, refers the situation in Darfur, Sudan to the Court… it must be expected that the Council would follow-up by way of taking such measures which are considered appropriate, if there is an apparent failure on the part of Sudan to cooperate in fulfilling the Court’s mandate as entrusted to it by the Council. Otherwise, if there is no follow up action on the part of the SC, any referral by the Council to the ICC under Chapter VII of the UN Charter would never achieve its ultimate goal, namely, to put an end to impunity… Since Sudan has failed to cooperate with the Court with regard to the arrest and surrender of Omar Al Bashir … the Court cannot but refer the matter to the SC for the Council to take appropriate measures. (emphasis added)
It’s well known that ICC does not have the requisite enforcement powers to take its Darfur investigations to its natural end. And in all this, the question one asks is if the watchdog of UNSC would ever bark.
 The Dog That Didn’t Bark alludes to the short story “Silver Blaze” penned by Arthur Conan Doyle in 1892 and featuring Detective Sherlock Holmes. In this story, Holmes investigates the disappearance of a prize winning horse the night before a race. Holmes notes that the horse’s watchdog, despite being present at the time of the horse’s disappearance didn’t bark, which leads Holmes to conclude that the horse was taken away by someone who was known to the watchdog. This phenomenon is often referred to as a “negative fact” or an expected fact absent from record.
 The countries that voted in favor of the resolution were: Japan, Greece, Denmark, Tanzania, Argentina, Philippines, Romania, Benin, United Kingdom and Russia.
 The countries that abstained were: China, United States, Algeria and Brazil. In terms of Security Council procedures, an abstention on part of permanent UNSC members (in this case, China and United States) does not ‘defeat’ a Resolution, as the exercise of a ‘veto’ would. Abstention votes are counted as ‘non-votes’ rather than ‘negative votes’, thus allowing the Resolution to be adopted. See Rule 86  of the General Assembly Rules of Procedure, available at http://www.un.org/en/ga/about/ropga/plenary.shtml.
 For a chronological listing of Al Bashir’s travels since 2009 and a travel map, see http://bashirwatch.org/. Of these, seven countries (Chad, Democratic Republic of Congo, Djibouti, Kenya, Malawi, Nigeria and South Africa) are members to the Rome Statute and although obligated to arrest Bashir pursuant to the ICC arrest warrants of 2009 & 2010; they have failed to honor their commitment to uphold the Rome Statute. It however must be mentioned that in 2012, after Joyce Banda’s accession to Presidency of Malawi, Malawi declared its intention to arrest Al-Bashir, should he present himself on Malawian territory. However countries such as Kenya, Nigeria, and South Africa have reversed their stand on arresting Al-Bashir in light of the rise of the “pan-African” opposition to the ICC. Notably, these countries had in the past (2009-2011) denied entry to Al-Bashir onto their territory, but have subsequently invited him to State level events such as swearing in ceremonies (Kenya, 2013) and African Union Summit (Nigeria, 2013; South Africa, 2015).
 For a chronological listing of PTC II decisions relating to Al-Bashir’s travel available at http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200205/related%20cases/icc02050109/court%20records/chambers/ptcII/Pages/index.aspx .
 In December 2010, France threatened to walk out of an EU-Africa summit which was proposed to be held in Central African Republic as Al-Bashir was likely to attend the same. The summit was eventually cancelled. For more, see http://www.nation.co.ke/news/africa/Bashir-hunters-seek-to-tighten-the-noose-as-he-plans-to-travel/-/1066/1071452/-/m0bgbnz/-/index.html.
 Article 98 allows states to enter into bilateral agreements to facilitate non-surrender of suspects—which allows for immunity against ICC prosecutions. This provision was incorporated into Resolution 1593 at the behest of the United States Representative to the UNSC. United States has entered into 100 such bilateral agreements to protect its personnel from ICC prosecutions.
 The UNSC can adopt Resolutions containing binding as well as non-binding language under Chapter VII. In most cases, the Council does use relatively clear language in its operative paragraphs. For example, it can be clearly established that by using “urges” and “invites,” as opposed to “decides,” the paragraph is intended to be exhortatory and not binding. For e.g. see http://www.securitycouncilreport.org/special-research-report/lookup-c-glKWLeMTIsG-b-4202671.php.
 The argument remains that China would have likely vetoed any such proposed UNSC Resolution given its proximity to Sudan and Al-Bashir’s regime.
 Resolution 1593 states that UN Members States not party to ICC, while not obligated to cooperate with the ICC, are urged to do so. The obvious inference from the same is that UN Member States party to the ICC are necessarily obligated to cooperate with ICC, both under the Rome Statute as well as Resolution 1593, again pursuant to Articles 25 and 48 of the UN Charter.
 Such sanctions would be as envisaged under Article 41 and could include “complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.”
 Many would argue that there is simply no political will to initiate and promulgate Resolutions of similar nature and given the divisiveness among the P5 members of the UNSC (especially the opposition of United States, and China specifically to the pursuit of ICC-led solutions in the context of Darfur, and Sudan); such Resolutions are unlikely to proceed beyond the initial drafting stage. This divisiveness amongst the P5 is in itself a problem that has led to negligible engagement by UNSC with Resolution 1593, since the UNSC remains pre-empted by it to use its powers of informal persuasion.
(The author is a Human Rights Monitor to UN Assistance Mission for Iraq (UNAMI). Her interests lie in issues of refugee and mixed migration movements, including Status Determination, Resettlement and Protection Functions for refugee populations, international human rights law and international criminal law and transitional justice issues. She can be contacted at email@example.com)