By Mel O’Brien
I have already brought up the issue of the need of the international community- states- to step up to the table and condemn Bashir’s actions and execute the ICC’s arrest warrant. I now read that Bashir has been to Eritrea on an official state visit. So, we have an internationally sought-after (alleged) war criminal, residing in a country in which not just one, but TWO peacekeeping missions are based (UNMIS and UNAMID), and who has been on an invited visit to a country where another mission was, until last year, located (UNMEE). He has also been to Egypt– state of the very first peacekeeping mission back in the 1950s.
States must take action to alter the mandates of peacekeeping missions to include the power to arrest any fugitives sought by the ICC. Of course, it is obvious why the mandates of UNMIS and UNAMID would not be changed. Host state consent is one of the principal elements of any peacekeeping mission. Therefore, UNMIS and UNAMID are only able to exist in Sudan with the consent of the government of Sudan. Headed, of course, by Bashir. Hence, any attempt by the Security Council to add the execution of ICC arrest warrants to the mandates of UNMIS and UNAMID would clearly result in a barring of both missions from the territory of Sudan by the Sudanese government. (That is, of course, should such a mandate amendment ever pass, given the support that China provides for Sudan!)
However, altering the mandates of all other missions would certainly restrict the available travel ambit of Bashir. He cannot travel to any country that is a party to the Rome Statute (or even through their airspace), as every one of those countries is under the obligation to carry out the arrest warrant. That means there are 108 countries that Bashir cannot travel to. Of course, those 108 state parties do not include Eritrea (or Ethiopia), or Qatar. Bashir is looking to travel to Qatar next week for an Arab League summit. The only Middle Eastern or North African state that is a party to the Rome Statute is Jordan. Thus, we see a lacuna for Bashir- those countries that are supporting him are under no obligation to surrender him to the ICC. Despite what Moreno-Ocampo insists, that all UN member states are under an obligation to execute the ICC’s warrant, this is not the case. The ICC is a judicial body, independent of the UN, and Rome Statute obligations are only binding on state parties. Only if the Security Council issues a binding resolution instructing UN member states to carry out the arrest warrant, will that obligation be broadened to non-state parties of the Rome Statute. The obligation to execute the arrest warrant cannot be inferred from a broad interpretation of any previously issued SC Resolution, regardless of the subject matter.
Adding to the mandates of peacekeeping missions to enable CivPol and military personnel to arrest anyone under an ICC arrest warrant will broaden the number of states Bashir must avoid, for example Haiti (MINUSTAH; not a member of the Rome Statute); and Côte d’Ivoire (UNOCI; not a member of the Rome Statute). It would also assist those states that ARE members of the Rome Statute (such as Chad and Central African Republic with MINURCAT; or Liberia with UNMIL) to carry out their obligations under the Rome Statute if they unable to do so due to situations of armed conflict or post-armed conflict upheaval. The existence of those suspected of committing war crimes, crimes against humanity or genocide should be viewed as a threat to the peace and security of these regions (regardless of the location of the commission of the alleged crimes), and hence the apprehension of such people viewed as a vital element of any peacekeeping mission mandate. Of course, given past examples of denied mandate interpretation or strengthening (e.g. UNAMIR was fully aware of the stockpiling and location of machetes prior to the Rwandan genocide but the UN refused to acknowledge that seisure of these weapons was part of UNAMIR’s mandate), it is unlikely the Security Council would make such adjustments to any mission mandate. However, this doesn’t mean that shouldn’t keep on pressuring, because just one day, pressure might result in change. It will also be interesting to see whether Bashir does make the trip to Qatar, and if there will be any attempts to divert his plane or arrest him in some other way.