Security Council and Sudan indictment

The political controversy that followed the indictment of Sudanese President Omar Hassan al-Bashir for war crimes in Darfur is expected to pick up steam once again with the arrival of an African Union (AU) delegation to press its case before the Security Council. A spokesman for the AU office in New York said that no dates have been finalised yet, but the delegation is likely to arrive either in late March or early April.

The AU, the League of Arab States and the Organisation of the Islamic Conference (OIC), three powerful political organisations with overlapping memberships, have criticised the decision of the International Criminal Court (ICC) to proceed with the indictment. They argued, among other things, that an arrest warrant on al-Bashir would jeopardise ongoing peace efforts in Sudan.

The AU, which is taking the lead, is expected to invoke Article 16 of the Rome Statute that created the ICC, and which gives the Security Council the power to defer any investigations or prosecutions at least for a period of 12 months. But such a resolution is unlikely to be adopted by the 15-member Security Council, which is divided on the indictment. And, as of Monday,

there was no action contemplated by the Council. The majority of the Council members, including the three veto-wielding permanent members, namely the United States, Britain and France, are opposed to any deferral.

Asked about the proposed Security Council intervention, William Pace of the CICC said: “The leader of the US negotiators at the Rome treaty conference stated the purpose of Article 16, proposed by the U.S., was for the Security Council to act at the beginning of an investigation the Council thought could interfere with peace negotiations.”

In this case, he pointed out, the Security Council not only did not defer, but explicitly authorised a Commission of Inquiry on the crimes being committed and then asked the ICC to investigate and prosecute those responsible for the crimes.

Out of a total of 108 states that are parties to the ICC, 30 are in Africa. Bill Fletcher, Jr., executive editor of, has a different take on the indictment, said: “The indictment against al-Bashir is very unhelpful even if morally it is correct.” He said the problems facing the people of Sudan go beyond President al-Bashir as an individual. “There is an entire regime in place. Going after one individual misses the point,” Fletcher said.

Second, he said, the ICC has no way of taking al-Bashir into custody. “In effect the indictment does

not help bring about a political resolution of the ongoing situation in Sudan. Rather it encourages the al-Bashir government to remain firm in its position because it has little to lose.”

While the al-Bashir government will need to be held accountable for the atrocities in Darfur, said Fletcher, the indictment does not focus on the critical need for a political solution to the conflict. Sudan is being looked at because the Security Council sent it to the ICC, and neither Russia nor China nor African countries in the Council stopped it, the UN official pointed out.

The fault does not lie with the ICC but with the member states who drafted a law that allows cases to go to the ICC only if they give their consent or the Security Council sends it to it, a source said. — IPS