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Former UN Rights Chief Says UNSC Referral of Darfur Case to ICC a ‘Very Bad Idea’


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Oct 17, 2012
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The former United Nations High Commissioner for Human Rights Louise Arbour acknowledged that referring the Darfur case to the International Criminal Court (ICC) in 2005 was a wrong move given subsequent lack of international support to the Hague-based court.
"I participated in the [UN] Commission of Inquiry [on Darfur]. I appeared before the [United Nations] Security Council (UNSC) so that we refer the matter to the ICC, but in retrospect, I realize that it was a very bad idea," Arbour was quoted as saying by the Canada-based La Presse newspaper which publishes in French language.
In Darfur, the court issued arrest warrants for President Omer Hassan al-Bashir, his Defense Minister Abdel-Rahim Mohamed Hussein, acting North Kordofan Governor Ahmed Haroun and militia leader Ali Kushayb all of who remain at large.
Arbor said that the referral resolution, which spurred a fierce battle between the United States and France at the time, had the effect of "undermining" the ICC.
She noted that despite referring cases like Darfur and Libya to ICC, UNSC offers "no policy or operational support" in arresting the individuals sought by the court.
Both Sudan and Libya refuse to hand over the suspects as demanded by the ICC and the UNSC has so far been mute on the row.
Arbor, who is now the Head of the International Crisis Group (ICG), also mentioned the fact that non-ICC signatories like the United States, China and Russia could subject other nations to the court’s jurisdiction under Chapter VII resolutions.
The U.S., which has been a staunch opponent of the court, has sought to veto Darfur ICC referral in a standoff with European members on the council led by France but later decided to abstain after ensuring that a clause is added protecting non-signatories from the court’s reach and ensuring it is not funded by the council.
The UNSC voted 11-0 to the Darfur conflict to the ICC with abstentions also from the Algeria, China and Brazil. The latter abstained over objection to the added exception in the resolution.
The same exception was added in the 2011 Libya referral decision.
The former Canadian Judge went on to say that without moving forward on adjudicating more cases the ICC, which convicted only one suspect since its inception in 2003, risks losing credibility.
"In the next few years, the challenges facing the Court are enormous," she said.
The ICC is also challenged by the African continent which has alleged that the court is unfairly targeting its leaders.
The ICC has opened investigations into eight cases, all of which are in Africa including Uganda, Democratic Republic of the Congo (DRC), Central African Republic (CAR), Darfur, Kenya, Libya, Côte d’Ivoire and Mali.
However, five of the eight cases were referred voluntarily by the African governments in question; two through a UNSC resolution supported by the bulk of African members in the council at the time and one was opened at the ICC prosecutor’s request.
Despite the African Union (AU) securing the appointment of an African prosecutor at the ICC it has continued to shield Sudanese president from arrest in Africa enabling him to travel to several ICC members in the continent.
It also asked the court to terminate the cases against the Kenyan President Uhuru Kenyatta and his deputy William Ruto.
Both men face charges of masterminding post-election violence (PEV) in 2007-2008 that drew regional and international outcry.
The Kenyan parliament failed twice to agree on establishing a local tribunal to investigate PEV and pushed for an ICC intervention.
However, after the ICC produced list of suspects which included six figures, Nairobi sought to have the cases deferred by lobbying the AU and UNSC for invoking Article 16 of the Rome Statute which is the founding text of the ICC.
But the UNSC brushed aside the joint requests submitted by the AU and Kenya.
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