Wednesday, June 14, 2017

A Supportive US Statement, a Divided Security Council: Analyzing Statements on the Darfur Situation

On Thursday, June 8, 2017, the Security Council met to hear ICC Prosecutor Fatou Bensouda’s briefing on the Darfur situation. The situation had been referred to the Office of the Prosecutor (OTP) by the Security Council through resolution 1593 (2005).

The ICC Prosecutor discussed the outstanding ICC arrest warrants in the Darfur Situation and asked for support in getting states to uphold these warrants, or at least for the Security Council to act upon her office’s referrals of states for non-compliance and non-cooperation. She emphasized the case of Sudanese President Omar al-Bashir, who has repeatedly made headlines for traveling to other states despite an outstanding ICC arrest warrant against him for genocide, crimes against humanity and war crimes in Darfur. Prosecutor Bensouda also mentioned that they were considering more individuals and new arrest warrants.

The statements of Security Council member states were divided. While the meeting began with a supportive statement from the UK,  the following statement from Ethiopia criticized the ICC’s handling of situations in Africa and called for the suspension of the case against Bashir. Egypt also called for such a suspension. Uruguay was extremely supportive of the Court’s work and encouraged ratification of the Rome Statute. The US called for accountability for the war crimes, genocide, and crimes against humanity in Darfur. Japan highlighted the obligations of States under resolution 1593 (2005). Ukraine criticized non-compliance with the court, followed by Italy which called for cooperation with the Court. However, then China said that the African Union’s criticism of the ICC, was reasonable and Russia argued that the meeting and its subject matter was inappropriate for the UN Security Council.  Sweden and France followed with supportive statements that called for cooperation with the ICC and obligations to uphold arrest warrants under the resolution. Sudan, which is not a member of the Security Council, was the last to speak. It denied genocide in Darfur, attacked the prosecutor and insisted that there was not enough evidence.

UN Photo

Division at Security Council

A similar division had arisen during the Prosecutor’s briefing on the Libya situation to the Council last May. Given the sizable body of opposition at the Security Council towards the ICC’s work and the geopolitical climate related to the ICC and situations of atrocities, it is doubtful that the Security Council will refer any more situations to the ICC. Similarly, despite Prosecutor Bensouda’s calls for Security Council action against non-compliance and non-cooperation, it may be unlikely that such actions will be taken in the immediate future. There are several countries who criticize the actions of the Court; so, it is possible that an enforcement attempt would not receive enough “yes” votes from the Security Council members. Russia and China’s opposition to the Court’s work and their economic and political ties could also turn into vetoes of future ICC-related referrals. That said, many actions to help end the conflict in Sudan have been taken by the Security Council in the past year: they renewed the 1591 Sudan Sanctions Committee Panel of Experts, sanctions, and UNAMID’s mandate. So, there could be the possibility of some action that indirectly helps the OTP’s work in Darfur. Yet, statements at the Security Council last Thursday suggest that some states have been alarmed the ICC’s efforts to get Bashir, a head of state, to The Hague.

Although there is too much opposition for the Security Council to act in support of the ICC’s work, it is highly unlikely that the Security Council will act with hostility against the Court. The verbal support for the ICC’s work from the majority of states at the Security Council, including the UK, France, and, often, the US, should provide a buffer against any efforts to undermine the Court’s work, including through resolutions deferring cases from investigation by the OTP and trial at the ICC. Such a deferral would bind the OTP from working on a case or situation under Rome Statute Article 16, and it could undermine the Court’s work.

However, deferrals are a possibility, and the Security Council has agreed on deferrals in the past. For example, during the Bush administrations’ political attack against the Court in the early 2000’s, it pressured the Security Council to pass Resolution 1422, which deferred ICC investigation and prosecution of peacekeepers.  It used its veto powers against resolutions renewing UN peacekeeping operations’ mandates until the Security Council agreed to do so. 

Therefore, for the continued success of the Court, the Security Council’s assistance, cooperation, and support will be vital. Supporters of the ICC who are nationals of Security Council member states must strategically demonstrate the public’s support for the Court and find new avenues to maintain, strengthen or induce their government’s political support for the Court.

The US Statement

Ambassador Michele J. Sison, the US deputy permanent representative to the United Nations spoke on behalf of the US delegation.  She stated:

“Having referred the situation in Darfur to the ICC over ten years ago, we must continue to demand Sudan’s compliance with this Council’s decisions. While victims have not yet seen justice, and refugees and internally displaced persons continue to struggle years after the conflict began, it is unacceptable that President Bashir still travels and receives a warm welcome from certain quarters of the world– and unacceptable that none of the Sudanese officials with outstanding arrest warrants have been brought to justice.”

This is not the first official statement that the US has made under the Trump administration about the Darfur situation. Last month’s press release from the US Embassy in Khartoum was more strongly worded. It opposed not only Bashir’s travel but travel of all individuals with outstanding ICC arrest warrants. Similarly, in May, the US expressed its support for the ICC’s work in Libya and called on states to transfer, to The Hague, individuals with outstanding ICC arrest warrants from the Libya situation.

Admittedly, there is only so much that can be derived from US statements at the UN or a US embassy. Neither of the statements came directly from Washington, and US officials’ statements on foreign policy issues have been lacking consistency—even at the highest levels. For example, recently Donald Trump and Rex Tillerson made news for making opposing statements about the diplomatic crisis between Qatar and other Middle Eastern countries. So, it is difficult to ascertain if the sentiments and policies set forth by these statements will reflect future actions and positions of the US government.

However, it is encouraging that, during the Trump administration, the three official US statements on the ICC were supportive of the Court. Even if the statements were not directly delivered by Washington,  supportive statements from the US mission at the UN Security Council and from a US embassy is better than a hostile reaction to the Court. 

The statements were consistent with the policy of constructive engagement, which was adopted under the Obama administration. Since no new policy has been publicly announced under the Trump administration, US officials may simply be following the old policy. Or, the supportive statements could be an intentional decision by the administration because changing the US policy on the ICC is not a top priority of the administration or because it felt that the policy was compatible with their goals. It is also possible that the administration simply has not paid attention to the ICC yet, and these offices are just echoing preceding statements and acting outside of Washington’s radar. So, it is likely, that the administration either doesn’t yet care about the ICC policy or the administration is at least neutral or in favor of the preceding policy. In either case, there is a chance that the US policy on the ICC will not change for some time.

Tuesday, June 06, 2017

Reviewing "Détente scoffs at talk of International Criminal Court probe"

Recently, news outlets have speculated on potential ICC charges against the Philippines President Rodrigo Duterte for crimes against humanity. The recent Washington Post article “Duterte scoffs at talk of International Criminal Court probe,” by Emily Rauhala, correctly notes that bringing charges against Duterte would take time. However, it also observes that if the OTP were to begin a preliminary examination into the situation in the Philippines—the first step in the process, the examination could have a significant impact. The Washington Post article also poses some interesting questions about the impact that charges for crimes against humanity could have on the US relationship with the Philippines. A few of the points made in this article deserve attention for AMICC’s advocacy.

Language check:

As is the case in most press coverage about the International Criminal Court, some inaccurate language conveyed common misconceptions about the Court. Some clarification might be needed when discussing the article

• First, referring to the Rome Statute, Emily Rauhala says that the US “never signed the treaty.” Yet, the US did sign the treaty on December 31, 2000, under the Clinton Administration, although Clinton did not send it to the Senate for ratification, and the Bush administration deactivated the signature in its first term.

• Similarly, the article says that Russia “withdrew” from the pact last year; however, more accurate terminology would be to say that it “deactivated” its signature.

• Rauhala writes that the “complaint” against Duterte “accuses the president and 11 associates of mass murder and crimes against humanity.” However, mass murder is a type of crime against humanity.

• South Africa, Gambia and Burundi have not merely “at various times, threatened to withdraw” from the ICC. All three announced their withdrawal last Fall and informed the UN of their decisions, which is necessary to leave the Court. South Africa and Gambia are no longer set to leave the Court, and only Burundi is set to leave.

Impact on The United States Relationship

Rauhala correctly pointed discussion in the article to the impact charges at the ICC will have on US-Philippines relations. Indeed, in the past, the US has shied away from allowing its leaders to shake hands with those accused of crimes by the ICC. Last month, the media was thrown into a frenzy with reports that both US President Donald Trump and Sudanese President Omar al-Bashir would be attending the same summit in Saudi Arabia. The speculation and criticism were not missed by the US government, and the US embassy in Khartoum released a strong statement against Bashir’s attendance: "the United States has made its position with respect to Sudanese President Omar al-Bashir’s travel clear. We oppose invitations, facilitation, or support for travel by any person subject to outstanding International Criminal Court (ICC) arrest warrants, including President Bashir.” If an arrest warrant is issued for Duterte for crimes against humanity charges, the PR optics of US officials meeting with the President might make such meetings increasingly unlikely.

ICC as the last hope

The article quotes Sen. Leila de Lima as saying that the ICC is “the last hope for the Philippines to see an end of killings.” Indeed, the ICC is a court of last resort. The framers of the Rome Statute intended for it to be so; it is not meant to get involved in situations where local or national institutions are already able and willing to execute the rule of law. Correctly explaining the principle of complementarity—although without using the term—Rauhala writes that the ICC “can assert… jurisdiction only if it is clear that local authorities have failed to investigate or prosecute crimes.” The article aptly explains that it does not appear that there is any movement in the Philippines for investigation or accountability for the extrajudicial killings and that institutions have been “kept” from doing so under Duterte.

Point of Contention: Political Pressures on the Prosecutor

Writing about “political considerations” as Rauhala did in the article may be appropriate journalism. However, it would be imprudent and unprofessional for the prosecutor to proceed or dismiss the complaint based on political pressures or fears. The framers of the Rome Statute intended for the Court to stay apolitical in its decisions to prosecute, and the prosecutor has repeatedly stated that she is committed to making decisions about prosecutions following her mandate rather than political tides. That being said, it is difficult for the prosecutor to completely fulfill her mandate without the necessary budget to do so. The article points to the relatively small resources at the Court's disposal given their caseload. While it is best that the Prosecutor remain committed to her mandate without political judgments involved; limited resources may forces the prosecutor to make choices between situations for the ICC to bring to a preliminary examination or investigation even if both situations fall under her mandate. 

The Washington Post should continue to educate its readers about the ICC and potential charges of crimes against humanity. The article does an excellent job of explaining the significance of the complaint and any potential preliminary examination or subsequent charges that might result from the complaint. However, better knowledge and understanding of how the court works is needed by news outlets to avoid contributing to the problem of misinformation about the Court.

Written and researched by Taylor Ackerman, AMICC Professional Associate (unpaid)