Is the ICC viable? The Darfur Test

May 17, 2007

Following a UN Security Council referral, the International Criminal Court (ICC) issued summons to Ahmad Harun and Ali Kushayb for alleged crimes against humanity and war crimes in Darfur, Sudan. According to a Yale Global On-Line op-ed by the International Crisis Group (ICG), “the Sudanese government has responded swiftly to the call… delivering a blunt threat to ‘cut the throat of any international official…who tries to jail a Sudanese official in order to present him to the [ICC].'” Apparently, these two individuals have close ties within the Sudanese regime and the regime fears (justifiably) that further summons may be issued to other regime allies by the ICC prosecutor.

Since the February 2007 summons haven’t worked, the ICC has raised the ante by recently issuing arrest warrants to compel these individuals to appear before the court. Typically, state parties to the ICC treaty are obligated to enforce these warrants. In this case, while Sudan is not a state party to the ICC, the UN Security Council referral makes Sudan obligated to cooperate with the court.

The ICC doesn’t have any power on its own to enforce these warrants, so its credibility is dependent on the UN Security Council. As Nick Grono and Donald Steinberg of the ICG point out, “by backing away from Sudan’s defiance and atrocities, the international community could strip the [ICC] of its power.”

What should the Security Council do? Grono & Steinberg recommend:

“The Security Council should provide Sudan a deadline for handing over the two individuals. Thus far, the failure of Khartoum to cooperate with the international community to resolve the conflict in Darfur has taken place at no cost to the regime. The council should change the calculations in Khartoum by imposing travel bans and asset freezes on the regime’s senior leadership, sanctioning the regime’s commercial entities, and considering measures specifically targeting revenue flows from the petroleum sector and foreign investment in that sector. Khartoum’s failure to accede to the council deadline should be enough to push even the most recalcitrant parties to support this approach.”

Of course, how the US and China, who abstained from the original resolution referring the case to the ICC, respond to this event will be crucial to the outcome of this case and to the viability of the ICC itself.

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