By Evan Gray, Blog Writer
On Friday, the 12th of December, the International Criminal Court’s (ICC) chief prosecutor, Fatou Bensouda, officially shelved the Court’s investigation into war crimes in Sudan’s Darfur region until further notice. Despite over 9 years of investigation and the existence of 5 outstanding arrest warrants in the case, Bensouda, blaming the UN Security Council’s refusal to enforce ICC decisions regarding Darfur, declared her decision was necessary in order to shift the court’s resources to “other urgent cases.” Unlike the ICC’s recent decision to drop charges against Kenyan President Uhuru Kenyatta, this decision does not prevent alleged war criminals like Sudan’s current president, Omar al-Bashir, from facing charges in the future. However, the announcement does point to serious problems with the ICC, in particular its lack of enforcement capabilities and its increasingly dysfunctional relationship with African leaders and governments.
In a conversation with a reporter from the Guardian, Nick Kaufman, the ICC’s advocate for victims of violence in Darfur, described Besouda’s decision as political “grandstanding” – an attempt to pressure members of the Security Council to force UN member states to arrest suspects wanted by the ICC. This has been among the biggest problems faced by the court in bringing war criminals to justice, with only 4 out of the 13 arrest warrants issued since the ICC’s inception in 2002 resulting in arrests so far. China, a permanent Security Council member which holds close economic and political ties with Sudan, has come in for particularly heavy criticism for its blocking of UN attempts to hold Sudanese leaders accountable for atrocities in Darfur. Despite refusing to vote against the motion that began the ICC’s Darfur investigation in 2005, China has recently used its influence to prevent the UN from demanding the arrest of Bashir and his lieutenants, establishing itself as the Sudanese government’s main Security Council ally.
However, the ability of the ICC to accomplish its goals in Sudan has also been hampered by another troubling reality: namely, Arab and African governments’ intense suspicion of the court and its aims. The majority of African nations are party to the ICC’s founding treaty, meaning that they are legally obligated to assist the court in its efforts. Nevertheless, their leaders have consistently refused to arrest Bashir and his co-defendants during their frequent trips to other countries in the region. Given the precedent that would be set by the arrest and conviction of Bashir, the sitting president of an African nation, it is perhaps unsurprising that other African leaders would be unwilling to participate. From the beginning, however, the ICC’s investigation into Darfur has also been consistently accused of ‘politicization,’ with many seeing the court as a ‘tool’ used by western governments to target its enemies. In particular, the court’s refusal to investigate other, more powerful countries like the United States despite evidence of human rights abuses resulting from its “war on terror” has caused many African leaders to question the ICC’s neutrality and legitimacy.
The pursuit of justice across national borders is a difficult and politically complicated task at the best of times. However, the current state of the ICC’s investigation into genocide in Darfur supports the culture of impunity that has become pervasive within Sudan – an outcome that simply cannot be tolerated. Clearly, the ICC and its allies will have to do more to ensure the cooperation of the court’s member states if justice is ever to be done in this case, and in others like it.