Article originally published in IJ Central byMariana Rodriguez-Pareja and Salvador Herencia-Carrasco on 23 June, 2012.

On 5 June 2012, the Prosecutor of the International Criminal Court (ICC) presented his 15th report to the United Nations Security Council (UNSC) on his investigation in Darfur, Sudan. In his statement, M. Moreno Ocampo made specific calls to adopt real measures that ensure the arrest of Sudanese indicted for international crimes. According to the outgoing Prosecutor, the constant defiance by the government of Sudan constitutes a direct challenge to the Council’s authority and International Law.

The investigation in Darfur began in 2005, after the landmark referral by the UNSC via Resolution 1593. It is estimated that 300,000 people have died since 2003 due to fighting between Government forces and the Janjaweed armed group. The ICC has issued arrest warrants against the President of the Sudan, M. Omar Al Bashir, the former Minister of Humanitarian Affairs, M. Ahmad Haroun (now Governor of the province of South Kordofan) and the Defense Minister, M. Abdelrahim Mohamed Hussein. The Court also issued summonses to appear for rebel leaders, M. Abdallah Banda, M. Saleh Jerbo and M. Abu Garda in relation to war crimes.

As William Pace, CICC Convenor has stated regarding the situation in Darfur, “(…) some of the accused not only continue to commit these crimes inDarfur, but are now doing so in other regions against other populations of Sudan. The Council’s inaction in enforcing Resolution 1593 undermines not only the Council’s credibility, but also threatens to undermine the International Criminal Court, which has agreed to assist the UN in maintaining international peace and security in this tortured situation”.

To this date, the Sudanese government continues to challenge the authority of the ICC and International Law. The African Union (AU), under the political pretext that the ICC is “out to get Africa”, has become (with some exceptions) an ally to foster impunity regarding the crimes in Darfur. Due to the possibility that Malawian authorities could arrest M. Al Bashir if he decided to attend the upcoming African Summit, the response of the organization was to change the venue to Ethiopia. Ten years after the entry into force of the Rome Statute, and political rather than legal considerations continue to set the pace in the cooperation for the prosecution of international crimes.

Cooperation with the ICC and respect of rule of law:  No grey areas

The new system of international justice, established by the Rome Statute, has increased the global discourse to fight impunity and still represents a promise made to future generations, a vow to help turn the words “Never again” into a reality.  It has also put forward high standards for gender crimes, fairness of proceedings, and victims’ rights.

In order to be effective and truly fight against global impunity, the Court relies on the cooperation it can receive from countries and international organizations. As it has been extensively discussed, the ICC needs State cooperation to fulfill its mandate. One would imagine that this cooperation should be of a positive nature, like the surrendering of suspects, providing security to victims, gaining access to crime sites, the exchange of information, among others. However, last week’s events in Libya prove that unwillingness of a State to cooperate can add a new segment on State cooperation: the non-interference on ICC official business.

In this sense, the four ICC officials detained by Libyan authorities is unacceptable and a direct violation to the Rome Statute and to Security Council Resolution that referred this situation to the ICC via Resolution 1970(2011). In short, it is a slap in the face of international justice and to the so-called “Arab Spring”. Securing the freedom of these officials is the current priority. However, this should also be the opportunity for the UN and the ICC to finally adopt stricter measures to assure cooperation from States. One will also like to know what were the criteria used by the ICC to authorize the deployment of these 4 officials if the conditions on the ground regarding safety and integrity were not met.

In addition to this pressing context, the situation in Syria keeps growing to the brink of civil war.

There have already been reports regarding war crimes and crimes against humanity by State Forces. Current military actions are in direct violation of International Humanitarian Law and there are reports in the use of children as soldiers and human shields.

What are we waiting for? Political debate should be on how to make cooperation more effective, not to see if cooperation benefits political interests.

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Mariana Rodriguez-Pareja is the Director of the Human Rights Program at Asuntos del Sur (ADS). Twitter handle: @maritaerrepe

Salvador Herencia-Carrasco, LL.M. University of Ottawa. Lawyer with experience in International Law. E-mail: chava@salgalu.com