Sudan-ICC Issue Not on Security Council’s Agenda for September


At the end of July, when the Darfur peacekeeping force’s mandate was renewed, a small group of Security Council countries — led by Libya and South Africa, and supported by Russia, China, and others — pushed for including in the Council’s resolution a suspension of ICC proceedings against Sudanese president Omar Hassan al-Bashir. Their effort — which would have required the invocation of the Article 16 provision of the ICC’s founding statute allowing the Security Council to postpone ICC operations for up to 12 months (though the applicability of Article 16 to this case is debatable) — fell short, resulting in watered-down language simply “taking note” of the African Union’s concern with the ICC’s decision. The issue has remained afloat, however, as the ICC Pre-trial Chamber’s decision on whether or not to actually indict Bashir approaches. We don’t know when that decision will come, but we do know that no Article 16 suspension will likely be coming out of the Security Council this month. According to Sudan Tribune:

The UN Security Council (UNSC) received no request from any of its members to take up the issue of the International Criminal Court (ICC) seek an arrest warrant for Sudanese president Omer Hassan Al-Bashir.

“This issue was not raised by any delegation. No delegation raised that for the time being at least” Michel Kafando UN Representative of Burkina Faso told reporters in New York today.

It seems odd that no delegation would even propose discussing the possibility of invoking Article 16, particularly given the pressure that Sudan has put on its potential allies in the Council, but I see at least three possible explanations behind this story.First, the U.S. at least, as well as perhaps the U.K. and France, seems likely to veto any resolution using Article 16 to suspend proceedings against Bashir. The U.S., despite the awkward balancing act that its opposition to the ICC forces it to take, has come out even stronger in its stance against impunity for the orchestrators of the Sudan genocide. While the U.S. delegation to the UN has been willing to set aside its animosity for the Court in abstaining from or generally approving of resolutions referencing its work in Sudan — particularly the one that granted the ICC jurisdiction there in the first place — it was sufficiently animated against the possibility of even implicitly referring to Article 16 that it refused to cast its vote on the aforementioned re-authorization of UNAMID’s mandate — a sort of resolution that is almost always approved unanimously. Khartoum would likely need to demonstrate proof of some sort of concession — on facilitating UNAMID deployment, stepping up the peace negotiations, or handing over the lower-down suspects on the ICC’s list, for example — in order for the U.S. and others to drop their opposition. Given that there is little tangible that Sudan could bring to the table in the next few weeks, however, a suspension would appear tilted to Khartoum’s advantage and is thus unlikely.

Second, despite the claims of its state-run media, Sudan cannot necessarily count on China to indiscriminately protect its interests in the Security Council. China is obviously in a complicated position vis-a-vis Sudan, eagerly pumping its oil but also working to assure international skeptics that it too is committed to peace and security in the country. And as a letter recently delivered to Sudanese officials from Chinese President Hu Jintao reveals, China will not necessarily use its veto to block an ICC indictment of Bashir, should one come. This could signal a shift in China’s position on the issue, confirming some analysts’ beliefs that fears of a Chinese veto are often overstated, but it is more likely designed to simply reassert China’s independence on the Council.

Finally, a resolution invoking Article 16 may not be on the agenda for the Council this month because Burkina Faso does not want it to be. This is not to presume intimate knowledge of the West African country’s stance on ICC involvement in Sudan — it is a signatory to the Rome Statute, but seemed disposed toward South Africa’s proposal back in July — nor to exaggerate the importance of its position, but merely to recognize two important dynamics in its relationship with both the Council and Darfur right now.

With regard to the first, Burkina Faso is holds this month’s presidency of the Security Council. This does not grant ultimate authority over what is discussed and passed during the month, of course, but it does provide Burkina Faso with a certain amount of discretion in laying out the Council’s agenda. The other development that may have shifted Burkina Faso’s position on the issue is the recent appointment of Djibril Bassolet — the Foreign Minister of Burkina Faso — as the Joint Chief Mediator in Darfur. Arriving with no connection to either side of the Darfur conflict, Bassolet’s neutrality will be essential to his effectiveness as a political go-between, and the decision-makers in Burkina Faso wisely may not want to burden him with any baggage that could be construed as bias one way or the other in Darfur’s vitally important, but long-stalled, peace talks. It’s hard to tell whether this coincidence will result in excessive trepidation in leading the Council to discuss Darfur in any capacity this month, but Burkina Faso’s estimation of the potential flammability of introducing an Article 16 resolution this month is likely spot-on.

What does this mean for the prospects of an ICC indictment of President Bashir? Essentially, not much. It’s up to the Pre-trial Chamber to decide whether or not to issue a warrant, and the ICC, it bears reminding, is an institution wholly independent of the UN Security Council. It’s possible that the Chamber reveals its decision this month — and the ICC Chief Prosecutor is reportedly very confident that evidence for at least the charges of crimes against humanity will pass muster for a warrant — but it is also possible, and even likely, that this drama will extend into October and beyond.

(Image from Flickr user Eric Rice using a Creative Commons license)