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Former UN rights chief says UNSC referral of Darfur case to ICC a ‘very bad idea’

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July 21, 2013, (WASHINGTON) - The former United Nations High Commissioner for Human Rights, Louise Arbour, has 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.

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Former United Nations High Commissioner for Human Rights Louise Arbour (Fabrice Coffrini/AFP/Getty Images)

"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.

The court has 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 whom 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, the 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.

Ahead of the referral eight years ago, the US, which has been a staunch opponent of the court, sought to veto Darfur’s 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 refer 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 has 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.

But 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 on the continent.

It also asked that the court terminate the cases against Kenyan president Uhuru Kenyatta and his deputy William Ruto.

Both men face charges of masterminding post-election violence in 2007-2008 that drew regional and international outcry.

The Kenyan parliament failed twice to agree on establishing a local tribunal to investigate post-election violence and pushed for ICC intervention.

However, after the ICC produced a 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.

(ST)

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  • 22 July 2013 09:46, by Pif Paf

    ICC is a Joke, a politically & racially biased institution that is not capable of much.

    repondre message

    • 22 July 2013 10:36, by Peter Mading

      In deed Arbour, the referral of Darfur case to ICC is a very bad idea. US, China, France are the world super power nations and are not signatories to the Rome Statue. There is no point of sponsoring the name/court that do not have power or police to arrest criminals. Let the Court be closed asap.

      repondre message

    • 22 July 2013 14:41, by EES Kingmaker

      Arbor is extremely confused diplomat. The statement is a clear support for impunity perpetrated by Bashir criminal clique. How can that be considered “very bad idea” when those countries have very weak, incapable, biased courts?

      repondre message

      • 22 July 2013 14:45, by EES Kingmaker

        Is it not enough for so many South Sudanese that you had butchered for close to half a century in the last two Sudanese civil wars and yet after CPA, we forgave your heinous crimes? Impunity must stop forthwith!!

        repondre message

  • 22 July 2013 10:34, by Marco Bul

    So what?Where did u go wrong?
    Let that money making enterprise be disolved alltogether coz it is not practical!!U have burnt ur finger.

    repondre message

  • 24 July 2013 23:52, by Justice Seeker

    I think the woman’s message is misunderstood by the readers. Arbour is appealing to the international community for the ICC to have a strong implementation mechanism like having its own police etc. She is also asking the superpowers like US who in the name of the UNSC refer cases to ICC to be signatories of the court so that they don’t undermine the credibility of the court. Amen

    repondre message

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