16 relief organizations have been closed or expelled. Photo (c) by IRIN.
Despite news reports, it's not yet clear whether the African Union delegation that wants to lobby the Security Council on invocation of Article 16 is going to arrive and talk to the SC soon or not. (Article 16 involves a call to defer the indictment of President Omar al-Bashir of Sudan, who has been charged with crimes against humanity by the International Criminal Court).
Meanwhile, it's useful to remember that the appeal to the Security Council to apply Article 16 is a kind of absurdity, when directed at the body that...referred the matter of Darfur to the ICC in the first place!
If the UN Security Council collectively found that the situation, back in 2005, had risen to the threshold to require investigation against crimes against humanity, and the ICC did its work, and then indicted even a sitting head of state, you can't very well then have buyer's remorse and say, "Oh, we shouldn't really have referred this case to you -- bad call".
Let's go back to 2005 and see how the votes went, shall we? Interestingly, on this terribly divisive matter, in this often very divided council, just four years ago, Resolution 1593 (2005), on referring Darfur to the ICC, garnered 11 votes in favour and 4 abstentions, with no votes opposed.
Algeria, Brazil, China, United States abstained. The U.S., as we know, opposed the ICC as an institution at the time but didn't oppose the referral. China doesn't like interference in internal affairs, especially of allies where it has considerable petroleum exploration, loans, and arms sales, but it abstained out of deference to the issue. I don't recall why Brazil, which probably thinks better of it now, abstained. Algeria is a member of the AU and often invokes the "Africa for Africans" mantra that doesn't like the "international community," which it perceives as Western/Northern dominated, deciding things about Africa.
Denmark, Philippines, Japan, United Kingdom, Argentina, France, Greece, United Republic of Tanzania, Romania, Russian Federation, Benin all voted yes. Yes. Today, Russia hasn't been very helpful on this and hasn't sought to persuade its allies about the indictment or put pressure on Sudan, which buys Antonovs and other vehicles and weapons from Russian arms dealers.
So let's look at this again: AU members Benin and Tanzania both took a position "for" referral of Darfur to the ICC, and AU member Algeria abstained at least to be helpful so it could pass. That's three AU members who are now essentially going against their prior vote, although I believe Tanzania is not part of the problem on Art. 16, but may be part of the solution.
In any event, in response to the AU invocation of Art. 16, it's useful to explain:
But three AU members voted or abstained back when the SC referred the matter of Darfur to the ICC.
The SC resolution passed by a wide majority of those in favour, with none opposed and 4 abstentions. Therefore, be consistent and don't go back on your word of 2005; more to the point, recognize that your argumentation is hollow, if the SC once referred; referrals shouldn't contain the possibility of deferrals, and that was never what the deferral was intended for. And waiting another year, when the SC had already waited some time before even putting Darfur on the agenda in 2005, will not improve the situation.
The Benin ambassador's explanation of his vote after the vote is particularly useful to resonate today:
JOEL ADECHI (Benin)
said the vote was a major event in the context of the international
community’s attempts to ensure there was no impunity for violations of
international humanitarian law in the past decade.
Benin had voted in favour of the resolution because it was party to the Rome
Statute and also because the worsening of the situation in Darfur meant that the Council must take action to end the suffering of the
civilians, ending impunity by providing impartial justice.
Benin had also voted in favour out of respect for human dignity and the right to life. The African Union recognized that the international community had a responsibility to protect civilians when they were not protected by their own governments. The resolution must help them to achieve their legitimate dream of an end to their suffering and enable them to look ahead to the future with serenity.
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