Alex de Waal questions the ICC and current procedures:
In turn the fact that the Prosecutor was able to demand an arrest warrant against a sitting head of state, without the possible risks for peace and security being subject to debate at the UN Security Council, reveals a major weakness in the international architecture. The Rome Statute of the ICC requires the Prosecutor to consider the interests of justice and the victims when deciding whether to prosecute. But he is within his rights if he interprets this is a narrow and negative obligation, which is only not to prosecute if the individual characteristics of the accused (age or mental state) don’t allow for a meaningful trial, or if the victims and witnesses might be harmed by a prosecution. The UN Security Council has the responsibility for weighing the interests of peace and security. But with the U.S., Britain and France (the ‘P3’) all sensitive to the demands of domestic activist constituencies, and the Secretary General abdicating any responsibility for the issue, the Council has done nothing except rebuff the entreaties of the African Union.
There is also no mechanism which obliges the UN Security Council to listen its African counterpart. More than 60 percent of UN Security Council business concerns Africa, but there are no permanent African representatives on the Council and Africa has no veto. Last July the African Union Peace and Security Council voted for the ICC action against President Bashir to be suspended. Twice the AU petitioned the UNSC for this to be considered, twice it was rebuffed. African governments, including Sudan’s neighbours, argue that the P3 have the luxury of endorsing high principles to satisfy their domestic constituencies, but it is Africans who will pay the price if Sudan’s peace agreements unravel. It is African peacekeepers who are in the front line if Darfur explodes. This division of responsibilities was workable when the UN Security Council was sensitive to African concerns, and Africa had no option but to go along with P3 dictat. It’s no longer acceptable. The mantra ‘no peace without justice’ is not a substitute for political analysis.