Three Monkeys Online

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Trying Times in Darfur and the Establishment of International Criminal Law – a PINR report.

The United States has been accused of obstructing justice by refusing to endorse the legal procedures recommended by a recent United Nations report on the humanitarian situation in Sudan’s Darfur region. The report identifies more than 50 individuals suspected of committing “crimes against humanity” and other war crimes; it proposes that the suspects be tried in the International Criminal Court (I.C.C.). Washington has worked to undermine the I.C.C. and is loath to endorse any measure that would lend credibility to the court.

Sudan is not party to the I.C.C.; therefore, the U.N. Security Council must endorse an I.C.C. investigation before any Sudanese suspects can be tried in the court. Reports indicate that France and Denmark have been successful in convincing the majority of the Security Council members inclined to take action in Darfur, a slim majority in itself, to endorse the I.C.C. role. The U.S. is the biggest obstacle to the I.C.C. gaining jurisdiction over the situation in Darfur, and it is unlikely to alter its position to facilitate the interjection of international law into Sudan. However, if the I.C.C. were to gain jurisdiction over Darfur, bringing charges against individuals at this point in the conflict may only work to prolong the fighting. The debate over the I.C.C.’s role will, at best, have little effect on Sudan’s Darfur conflict, but how this debate is resolved will likely set the course for international law in ethnic conflicts for the near future.

The U.N. Investigation in Darfur

A U.N. commission of inquiry into the alleged genocide occurring in Sudan’s Darfur region reported its findings to the secretary general in late January. With the Security Council divided into two camps on Darfur — those urging punitive actions against Khartoum and those seeking to defend Khartoum’s sovereignty — the commission’s report was hoped by both camps to provide justification for their stance. Neither side was pleased with the findings.

The report did not define the situation as “genocide,” but it came as linguistically close to this definition as possible without committing the Security Council to any specific course of action. The report found that “crimes against humanity” are taking place in Darfur that “may be no less serious and heinous than genocide.” It found that while some individuals may have acted with “genocidal intent,” the “torture, enforced disappearances, destruction of villages, rape and other forms of sexual violence, pillaging and forced displacement” committed by Sudanese troops and irregular militias aligned with the government was part of a military strategy not done “with intent to destroy, in whole or in part, a national, ethical, racial or religious group.” The report asked that the final verdict on the question of genocide be left to a court of international justice, and singled out 51 individuals who should be tried (their names have not been made public).

This indictment did not please those in the Security Council who would like to protect the sovereignty of Sudan. China and Russia fear establishing a legal precedent that might encroach on their abilities to suppress secessionist movements within their territories. Also, China’s voracious appetite for energy resources has led it to court Khartoum’s oil fields in southern Sudan; it is unlikely to seek punitive actions against Sudan that would cut off its access to these fields. The governments aligned in this camp would prefer that Khartoum be allowed to try the suspects within its legal system; those seeking punitive actions against Khartoum would like to take this power away from the Sudanese government in the hopes that it will weaken its position in the peace negotiations with the Darfur rebels and force a settlement.

However, the commission has divided this camp by reporting “the I.C.C. is the only credible way of bringing alleged perpetrators to justice,” through its “set of well defined rules of procedures and evidence” that “could be activated immediately.” The U.S. has been at the leadership of the camp seeking punitive actions since the situation in Darfur first came to international attention. On the other hand, the U.S. has led a campaign to undermine and invalidate the I.C.C. With five new members joining the Security Council at the beginning of the year, there has been much lobbying from Washington to find an alternative venue for the proposed trials. While the appropriate venue is debated, those in the Security Council aligned with Khartoum have been pleased that the U.N. has taken no further action in Darfur. This has infuriated the governments and N.G.O.’s who wish to see more robust action taken in Darfur, directed at Khartoum. The U.S. is blamed for this bottleneck and, according to an opinion article in the New York Times, is accused of not knowing “what it dislikes more: genocide or the International Criminal Court, which seeks to punish it.”

The I.C.C. and U.S. Opposition

The I.C.C. operates outside the U.N. system and derives its power from the 1998 Rome Statute of the International Criminal Court, which the Clinton administration begrudgingly signed and the Bush administration “unsigned.” Ninety-seven countries are party to the Rome Statute and the permanent seat of the court has been established at The Hague in The Netherlands. The current I.C.C. investigations in Uganda and the Democratic Republic of Congo have established the court’s ability to operate in Africa, and supporters point to these investigations when describing the I.C.C. as the “natural” venue for an investigation into the Darfur situation. The court is designed to be the court “of last resort”; if operated in keeping with the Rome Statute, the court will only hear cases with permission of the defendant’s state or when it is determined that the defendant’s state cannot, or will not, try the individual. It is this last possibility that has concerned Washington the most — a future court could determine Washington was unwilling to try a U.S. citizen, and it would seek to extradite the individual to The Hague to stand trial.

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