Updated on 11 April 2015
Chapter 9: RELATIONS WITH OTHER ORGANS AND ENTITIES
Section 7: International Criminal Court
ICC asks Security Council to act on the Sudan’s non-cooperation over Darfur
On 9 March 2015, Pre-Trial Chamber II of the International Criminal Court (ICC) adopted a decision that the Sudan had failed to cooperate with the Court by not arresting and surrendering to the Court President Omar Al-Bashir. The decision was sent by the ICC President to the Secretary-General for transmission to the Security Council (S/2015/202).
In its decision, the Chamber highlighted that the Sudan, a non-member of the ICC, was nonetheless obligated to cooperate with the Court because it was bound under Article 25 of the UN Charter to comply with Security Council resolution 1593 (2005) referring the situation in Darfur to the ICC. By its resolution 1593 (2005), the Council had decided that the Sudanese Government “shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution”. Invoking Article 87(7) of the Rome Statute, the Chamber stated that the ICC “cannot but refer the matter to the SC for the Council to take appropriate measures”.
In its 9 March decision, the Chamber recalled that the Court itself “has no direct enforcement mechanism”. Thus, it stressed, when the Security Council, acting under Chapter VII of the UN Charter, refers the situation in Darfur to the Court as constituting a threat to international peace and security, “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”. The Chamber underscored that if there is no follow-up action by the Council, “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.”
The Chamber’s decision did not refer to the Security Council meeting of 12 December 2014 at which the ICC Prosecutor had told the Council that, faced with her Office’s limited and overstretched resources for investigations, “and given the Council’s lack of foresight on what should happen in Darfur”, she was “left with no choice but to put investigative activities in Darfur on hold”. Stating that she remained open to constructively engage with the Security Council on the Darfur issue, the Prosecutor had added that what was needed was “a dramatic shift in the Council’s approach to arresting Darfur suspects”. She also called on all States and the Council “to find creative ways to support those among them that may be most vulnerable to planned visits by Mr. Omer Al-Bashir or other individuals against whom warrants of arrest have been issued” (S/PV.7337).
In response to the Pre-Trial Chamber’s 9 March 2015 decision, the Sudanese Information Minister stated that “raising Sudan’s case with the Security Council reflects the failure of the ICC”. Arguing that the Court’s decisions were “not in any way binding to the Sudanese Government”, the Minister added that the “ICC knows it doesn’t scare Sudan at all” (AFP, 12 March 2015). On 17 March, the Security Council held a meeting and closed consultations on the situation in Darfur which had been scheduled prior to the Chamber’s decision. No public response by the Council to that decision emerged from the 17 March proceedings. (This update supplements pages 616-617 of the book.)