First, contrary to what has frequently been reported, Chief Prosecutor Luis Moreno-Ocampo did not “indict” Sudanese president Omar Hassan al-Bashir. What Ocampo did was, based on his assessment of the evidence painstakingly collected by his team, issue a recommendation that President Bashir be indicted. Much as a prosecutor presents evidence to a grand jury, which subsequently decides whether or not to issue an arrest warrant, Ocampo submitted his recomendation to a Pre-Trial Committee. It will be this committee that, after a likely two to three month period of assessing the evidence presented by Ocampo, will determine whether or not to indict Bashir.
What is the relevance of this distinction? Well, it emphasizes the legal process according to which the ICC operates, an important aspect of this story that has been neglected by the media and many critics. Without a contextual understanding of this process, Ocampo’s actions are often portrayed as the reckless gambles of a bold and/or politically insensitive (depending on one’s take on the issue) crusader for justice.
This description may indeed be apt, but it misrepresents the degree of freedom with which Ocampo operates. He certainly has developed his own strategy, and he is undoubtedly aware of the political repercussions of his actions. (In fact, as someone who’s been in Ocampo shoes before attests, much of a prosecutor’s work often does fall on the political side of things.) However, Ocampo is acting within the confines of the ICC’s mandate, and according to a set process. This mandate is set by the Rome Statute establishing the ICC and by the convention setting out the Court’s relationship with the UN.Second: the ICC is separate from the United Nations. The UN, or the Secretary-General, do not have any influence over how the ICC operates in Sudan, or anywhere else for that matter. Yes, the Security Council was responsible for initiating ICC action in Sudan, and can, through a vote, suspend ICC proceedings, but it cannot interfere with the Court’s actual work and decisions on the ground. Kevin Jon Heller, at Opinio Juris’ newly remodeled site, explains the dynamics behind this option of suspension and emphasizes that the ICC is not simply a tool to be manipulated by the Security Council.
A related misconception is that it is the UN’s responsibility to secure the arrest of those indicted — or recommended for indictment — by the ICC. Again according to the ICC’s founding document, handing over indicted war criminals is primarily the obligation of these individuals’ government. Failing this, the responsibility lies with ICC signatory countries, which, though there are many exceptions (notably the United States), include 106 UN Member States.