“UNAMID” Troops’ Obligation to Apprehend ICC Suspects in Darfur
By Dr Sami Saeed
February 11, 2008 — Pursuant to the Security Council Resolution 1593/2005, Chapter 7 of the Charter of the United Nations, and Article 13/b of the Rome Statute of the ICC, the situation in Darfur, since 1st of July 2002, has been referred to the prosecutor of the International Criminal Court (1) . The resolution urges all States, not only Sudan, regional and other international organisations to fully cooperate with the ICC. This is true notwithstanding a sentence in paragraph 2 of the resolution, which redundantly recognises that “States not party to the Rome Statute have no obligation under the Statute”. In fact, requests of co-operation to non parties will be made by the court on the basis of the resolution, which is adopted under Chapter 7 of the UN Charter as an enforcement measure not implying the use of force (Article 41, UN Charter). And if the State proves unwilling to cooperate, the Prosecutor may bring the matter of non-cooperation to the attention of Security Council (Article 87.7, Rome Statute), which may take further enforcement measures.
The international co-operation with the Prosecutor will bring an added value to the ICC involvement given the veracity of the old adage that “justice must not only be done but also be seen to be done”. In this connection, victims and communities will clearly benefit from greater accessibility to the ICC; and that the proceedings themselves will take place at locations where the crimes are committed.
The resolution requests the regional and international organisations to fully co-operate with the ICC and explicitly mentions the African Union obligations, which include entering into negotiations with the Court with a view to holding ICC proceedings in an appropriate location in Africa. Furthermore, the expression “fully co-operate” suggests that all international actors, have an obligation under Chapter7 of UN Charter, to implement the Security Council willingness to restoring peace and security in the region. To that end, UN Peacekeeping Missions are the first international organisation corresponded by the resolution, particularly “UNAMID” which is a UN body created to serve as one of the Security Council measures concerned with the conflict addressed by the resolution 1539/2005.
Taking into consideration the power of the Security Council, in accordance with Chapter 7, to add, amend or create a new measures to facilitate the ICC function, “the purpose of the referral of the situation in Darfur by the Security Council, to the ICC, is to contribute to the restoration and maintenance of peace, as well as to contribute to international justice. This will be seriously impaired if the indicted suspects are not brought to justice”. For that purpose, the resolution “invites the prosecutor to address the Council [….] every six months thereafter on actions taken pursuant to the resolution”.
On 2 May 2007 the Pre-Trial Chamber of the International Criminal Court (ICC) issued arrest warrants against Ahmed Harun and Ali Kushayb(2) , who face a list of 42 and 50 charges respectively, of crimes against humanity and war crimes committed in Darfur. Sudan rejects the ICC’s jurisdiction, and has made it clear it will not hand over the two suspects, arguing that as it did not accept the establishment of the ICC, the court had no jurisdiction over its citizens . Urging the 15 member council to act and put an end to this pattern of non-cooperation (3), the Prosecutor said, “Sudan, a UN member state, has not complied with its obligation under (2005) Security Council Resolution 1593 to arrest and surrender suspects.”
In the Charles Taylor’s case before the Special Court for Sierra Leone the Security Council, acting under Chapter7 of the UN Charter, unanimously passed a resolution (1638/2005 ) that empowered the United Nations Mission in Liberia (UNMIL) to arrest, detain and transfer Taylor to the UN court in Sierra Leone in the event that he appeared in Liberia.
According to resolution 1638, which has established a new precedent; the UN Security Council decided that the mandate UNMIL shall include the following additional element: “to apprehend and detain former President Charles Taylor (4) in the event of return to Liberia and to transfer him or facilitate his transfer to Sierra Leone for prosecution before the Special Court for Sierra Leone (SCSL) ….”.
This new task assigned to a UN peacekeeping mission is a significant departure from previous practice. Although there are a few precedents of military troops acting within the framework of UN missions which have been authorised to arrest criminals, the conferral of an explicit and clear mandate constitutes a welcome novelty. This resolution is indicative of the trend emerging in the UN Security Council’s practice to combat impunity by enhancing the rule of law and promoting international criminal justice; in particular, it is notable because it evinces the Security Council’s willingness strengthen cooperation with the International Criminal Court.
Taylor’s trial sets a precedent, in that it is the first time that an African head of state has had to face an international war crimes tribunal for crimes against humanity- another step in growing efforts to make leaders accountable for their actions during conflict.(5)
Reading Taylor’s precedent, together with the Security Council’s power under Chapter 7 of the United Nations Charter, UNAMID troops are not only authorised to, but also are obliged to implement paragraph 2 of the “Resolution 1593/2005”, and to cooperate with the International Criminal Court; to arrest and to transfer the detainees to The Hague in the Netherlands. And in the Darfur context, arresting a war criminal can easily be reconciled with the non- coercive nature of UNAMID peacekeeping operations, provided that the consent of all parties involved is secured.
In “UNAMID” where the multinational peacekeeping troops do not have effective control and jurisdiction over the national territories, the consent of the host State will always be legally required. To circumvent that obstacle, the only available alternative would be a UNSC Chapter VII Resolution imposing a clear duty on peacekeeping troops to enforce the ICC arrest warrants irrespective of the consent of the State. Following the influence of the UNSC Resolution 1638 mandate to allow UNMIL to arrest Charles Taylor, an order directed towards peacekeeping troops rather than towards States, would have much a greater chance to be first issued by the UN supreme decision-making body, then to be accepted by the international community of States, and finally to be executed.
* Dr. Sami Saeed is Legal Officer at United Nations Mission in Sudan UNMIS, Khartoum, Sudan.[….] The views expressed are those of the author and do not necessarily reflect the views of the United Nations.
Notes:
1- S/RES 1593/2005, adopted by the Security Council at 5158th meeting, on March31, 2005.on the situation in Darfur, Sudan, was adopted with 11votes in favour and 4 abstentions. The members of Security Council that voted in favour of the resolution were: France, The United Kingdom, Benin, Greece, Denmark, Argentina, The United Republic of Tanzania, and Romania( States parties to the ICC Statute) as well as Japan, the Philippines and Russia, which are not yet ICC Member States. The United States, China, Algeria, and Brazil abstained.
2- S/RES 1593/2005, adopted by the Security Council at 5158th meeting, on March31, 2005.on the situation in Darfur, Sudan, was adopted with 11votes in favour and 4 abstentions. The members of Security Council that voted in favour of the resolution were: France, The United Kingdom, Benin, Greece, Denmark, Argentina, The United Republic of Tanzania, and Romania( States parties to the ICC Statute) as well as Japan, the Philippines and Russia, which are not yet ICC Member States. The United States, China, Algeria, and Brazil abstained.
3- ICTR has a similar pattern, “In his progress report to the Security Council on June 18.2007, the new President, Judge Dennis Byron voiced a passionate call to member state to help in efforts to arrest the indicted suspects still at large”. http:// allafrica.com/stories/200707170284.html.
4- Charles McArthur Ghankay Taylor (born January 28, 1948) served as President of Liberia from August 2, 1997 to August 2, 2003. was elected president at the end of that conflict, subsequently was forced into exile, and now is in detention at The Special Court for Sierra Leone. Taylor has been indicted on 11 counts of war crimes and crimes against humanity for allegedly supporting a brutal rebel movement in Sierra Leone [….] United Nations Peace Keepers effect the arrest former Liberian President Charles Taylor after surrendering him by Nigerian Police Forces at Monrovia’s Roberts International Airport. Taylor was immediately transferred to the Special Court for Sierra Leone in Free Town […..] his first court sitting convened in The Hague, January, 2008.
5- “Former UN Secretary General Kofi Anan pointed out, Taylor’s capture and trial do not only close a chapter but also send a powerful message to the region that would be warlords will ultimately pay a price. Charles Taylor’s case is thus loaded with implications for African presidents including coup leaders and others accused of human rights violation”. Nivedita Ray, Charles Taylor’s Arrest: A Message to the Continent, INSTITUTE FOR DEFENCE STUDIES & ANALYSES, April 04,2006. htt://www.idsa.in/publications/stratcomments/niveditaray040406.htm