The recent visit to Chad by Sudanese President Omar al-Bashir illustrates a fundamental problem confronting the International Criminal Court.
Bashir was indicted on war crimes and crimes against humanity in March 2009; earlier this year, the charges were expanded to include three counts of genocide.
According to the Rome Statute that created the court, all member states are obliged to arrest indictees if they enter their territory.
However, Chad, which has signed the Rome Statute, offered Bashir a warm welcome rather than an arrest warrant. Chad's leaders, who claimed that the court has been unfairly targeting African leaders, said their country was not obligated to facilitate Bashir's arrest.
Chad cited a resolution by the African Union, which urged member states not to cooperate in sending the Sudanese president to The Hague.
The decision by Chad's President Idriss Deby to place his country's relations with the African Union ahead of its obligations to the international court has highlighted the court's inability to require compliance among its member states.
At issue is the African Union's contention that Bashir enjoys immunity from prosecution because he is a head of state. The court insists no such immunity exists, but since Sudan is not a signatory to the statute creating the court, some have argued that it is not governed by its rulings.
In addition, Article 98 of the Rome Statute stipulates that a country does not have to comply with a court's request if it runs contrary to "its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State."
Al-Hadi Shalluf, a French-Libyan lawyer, said, "The African Union is a regional organization and it is recognized by the United Nations. But it has no authority and no mandate to break international law."
Other experts were more equivocal.
"There may be obligations on state parties, created by the Rome Statute, and Chad is subject to these obligations under international law," said Professor William Schabas, head of the Irish Center for Human Rights. "But Chad is also a member of the African Union and it may feel compelled to follow the political direction of the African Union as reflected in the resolution." Beyond the legal wrangling, the fact is that there are no punitive sanctions outlined in the Rome Statute to punish countries which fail to comply leads other lawyers to conclude that the court's hands are tied.
"The court can't do an awful lot because the whole Rome Statute is predicated upon complementarily and states fulfilling their statutory obligations, and there is no sanction for non-compliance," explained Karim Khan, who works as a defense lawyer at the court.
"The reality is that an indicted head of state is only going to be arrested when the states concerned decide that (it is in) their interests to bring him to justice," Khan said.
Simon Jennings is an reporter in The Hague who writes for IWPR, a nonprofit organization that trains journalists in areas of conflict.
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