In the International Criminal Court (ICC)'s latest report to the UN Security Council (UNSC), ICC Prosecutor Fatou Bensouda recalled that in December 2014 "given the Council's failure to act decisively on numerous acts of defiance of its Resolutions by the Government of Sudan, and given the limited resources at [her] disposal, [she] was left with no choice but to limit active investigations". This came as a shock for many and some had understood that this was a victory for Mr. al-Bashir and other suspects in the Darfur situation.
But it was not.
While I was very angry about President al-Bashir's trip to South Africa for the AU Summit a few weeks ago, his sudden departure proved me wrong: the arrest warrant was valid, in full force and being executed. Although President al-Bashir was not arrested, the judicial branch in South Africa set a good precedent for what other States can do in order to fulfill their obligations and commitments with the ICC. This explains why in her report to the UNSC Prosecutor Bensouda encouraged "States Parties to plan - ahead - for the arrest of each individual wanted by the Court in a targeted and efficient manner."
William R. Pace, Convenor of the Coalition for the ICC (CICC) agreed with me: "the failure to arrest Omar al-Bashir is very unfortunate, but he must sneak into and out of governments letting him attend their meetings, and CICC members in South Africa, Nigeria, and Kenya have secured high court warrants for arrest or detention of Bashir", he stated.
States should also be aware of the other outstanding ICC arrest warrants in the Darfur situation since President al-Bashir is not the only one being subject to an arrest warrant. Mr. Ahmad Harun, the so-called "Butcher of Nuba" (now Governor of South Kordofan) is among those sought by the ICC. In late May, he traveled to Saudi Arabia, making it his first trip since the issuance of his arrest warrant in 2007.
Harun, a lawyer by training, is sought by the Court for 42 counts for war crimes and crimes against humanity. Since 2007, he openly defied the ICC, firing off false accusations at both the Court and former Prosecutor Luis Moreno-Ocampo. He has also served in senior official capacities in Sudan for more than a decade and is the current Governor of the province of South Kordofan in the North region of South Sudan.
As The Sudan Tribune reported, Harun was seen standing along with other Sudanese officials including President al-Bashir at Prophet Mohammed's Mosque in Medina, Saudi Arabia in May. While Saudi Arabia is not party to the ICC's Rome Statute, it is a UN State Member. As such, it should comply with the Resolutions adopted by the Security Council, including Resolution 1593/2005 which urges all States (parties and non-parties to the ICC) to "cooperate fully".
Hosting Harun or any other ICC suspects is a slap in the face to Darfur.
"In conclusion, let me restate that there is more that we can and must all do to achieve peace and justice in Darfur," indicated Bensouda on June 30, 2015, "I will continue to do my part in the exercise of my independent and impartial mandate."
A support at all levels- political, diplomatic and judicial- is crucial for the ICC.
A few weeks ago, I had the chance to talk briefly to the former ICC Prosecutor Moreno-Ocampo. He deplored that little progress was made10 years after the Darfur referral by the UNSC, "It is a shame," complained Moreno-Ocampo. "In 2005 the world was committed to do justice for people in Darfur.... 10 years later there are arrest warrants for the top leaders of the Sudan but there is no international commitment to protect the victim's rights."
He is right: if we, as an international community, are committed to stop the slaughter of civilians, rape and starvation, we should not let other reasons interfere with that commitment and should respect and implement judicial decisions, such as the arrest warrants the ICC issues for those most responsible for human rights violations.
Finally, state non-cooperation as noticed in many cases constitutes a blatant breach of international law. We have to prevent this from happening. Failing to do so would be condoning impunity- which is exactly the opposite of what we all seek.
"It has been 20 years since the genocides in Rwanda and Srebrenica - the trials of those accused in the former Yugoslavia were delayed much longer than has occurred in Sudan", said CICC's Pace, "This is the strength of the Rome Statute and the permanent ICC. International justice has been delayed, but it has not been denied".