ICC informs UN about Sudan’s failure to arrest Al Bashir

The International Criminal Court (ICC) announced today that it decided to inform the UN Security Council (UNSC) about Sudan’s non-cooperation in the arrest and surrender of President Omar Al Bashir.

“Sudan has constantly refused to engage in any sort of dialogue with the responsible organs of the Court over the past six years. As such, the Chamber considers that Sudan has waived its right to be heard on the matter, and it may accordingly proceed to the next step regarding Sudan’s non-cooperation with the Court,” the ICC Pre-Trial Chamber II stated in the Decision on the Prosecutor’s Request for a Finding of Non-Compliance Against the Republic of Sudan, today.

“The Chamber also found that Sudan did not discharge its obligations to consult or notify the Court of any impediment to execute the pending requests,” the Decision reads.

The three judges of the Chamber decided to inform the UNSC to take the necessary measures it deems appropriate, stressing that if there is no follow up action on the part of the UNSC, any referral by the Council to the ICC under Chapter VII of the UN Charter would never achieve its ultimate goal, namely, to put an end to impunity.

Although Sudan is not a State party to the ICC Rome Statute, it has an obligation to cooperate with the ICC. This obligation stems directly from the UN Charter, as Sudan is a UN member since November 1956. The UNSC, under Chapter VII of the UN Charter, adopted Resolution 1593 in 2005, in which it was decided that the “Government of Sudan […] shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution”.

On 4 March 2009, Pre-Trial Chamber I issued a first arrest warrant for Al Bashir, considering that “there are reasonable grounds to believe that the suspect is criminally responsible for five counts of crimes against humanity and two counts of war crimes”. The same Chamber, though with a different composition, issued a second arrest warrant for the Sudanese president on 12 July 2010, for three counts of genocide.

Further investigations 'frozen'

ICC prosecutor Fatou Bensouda announced on 12 December last year that the investigations into war crimes in the Darfur region were suspended, for lack of action by the UNSC to push for arrests. She called it a “serious indictment on this Security Council” that Al Bashir and others have shown “blatant disregard” for the Council’s resolutions of December 2013.

“Given this council’s lack of foresight on what should happen in Darfur, I am left with no choice but to hibernate investigative activities in Darfur, as I shift resources to other urgent cases,” Bensouda stated.