(PINR)Trying Times in Darfur

[nosmokes]

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Power and Interest News Report (PINR)
http://www.pinr.com
[email protected]
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04 March 2005

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Trying Times in Darfur and the Establishment of International Criminal Law
Drafted By: Adam Wolfe
http://www.pinr.com

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 over 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.
~snip~
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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 veracious 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, 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.
While the E.U. system itself is based on the idea that a transparent legal system for mediating conflicts will prevent future conflicts, the E.U. members have been the court's most vocal champion because they believe the establishment of an international legal system that operates on the individual -- not just the nation-state -- level will help to create the multipolar world in which Europe has greater power to shape events. Other states such as Brazil and Venezuela support the court for similar reasons: creating a system that binds the regional hegemon to abide by a legal system at the individual level will create an environment in which countries wishing to expand their influence have yet another tool to do so.
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Can a Judge End a War?

It is not clear that granting the I.C.C. authority to investigate and try individuals in Darfur will do anything to end the conflict; in fact it may lengthen the fighting by removing the incentive of possible participation in a post-conflict, power-sharing government for those accused by the I.C.C. It is certain that the irregular militias fighting on the side of the government, the janjaweed, have committed war crimes and that those in the Sudanese government who have coordinated with the janjaweed leaders would stand trial as well. However, it is also highly likely that the rebel leaders would be investigated for humanitarian crimes, and some would be found guilty. None of those accused of war crimes would be able to participate in any new government entities that emerges from the conflict, which would only increase the incentive to ramp up the attacks and force a final resolution by eliminating the enemy.
~snip~
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Conclusion

The current debate over the I.C.C.'s role in Darfur has little to do with ending Sudan's conflict; it is about establishing protocols for the next Darfur. If the U.S. concedes authority to the I.C.C. in this instance, it will be more likely to do so the next time a country or region collapses along tribal or ethnic lines. If the U.S. can prevent the I.C.C. from gaining jurisdiction over Darfur, it will be better able to do the same the next time around. The U.S. would like to remain unbound in conducting its international affairs; the E.U. and other I.C.C. supporters would like to create an environment in which all states are bound to a basic legal code.
Events outside of Sudan seem to indicate that the world is becoming more multipolar. The tide in the Security Council has turned against the U.S.' opposition to the I.C.C., and even those countries who do not support the court -- China and Russia -- might be willing to support I.C.C. jurisdiction in Darfur to further this drift toward multipolarity. While granting I.C.C. jurisdiction over Darfur may not be the most efficient way to resolve the conflict, it appears that it is the most optimal solution for those states seeking to slightly weaken the U.S.' position as the sole superpower, and for this reason it is likely to be a major component of the next Security Council Resolution on Darfur.

complete report available at http://www.pinr.com

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Report Drafted By:
Adam Wolfe
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[reorg]

1. I find this very odd ...

that states who are not parties to the Statute of Rome may decide that other states which are also not parties to the Statute of Rome will be within the jurisdiction of the ICC.

Not to mention the fact that the former may have committed worse crimes within about the same time frame as the latter!


At the site of some "International Federation for Human Rights":

http://www.fidh.org/article.php3?id_article=1918

"Brief background on the ICC jurisdiction

As reminder, the principle is that the International Criminal Court has jurisdiction to judge war crimes, crimes against humanity and genocide committed since 1st July 2002 on the territory or by a national of a State party to its Statute. Therefore, the ICC has limited jurisdiction. Excepted when it is a submission of the ICC by the Security Council. Indeed, the Security Council can decide to submit the ICC on a crime within its sphere of the competence of the ICC even if the country where the crime was committed is a State party or not.

The fact that Sudan is not State party to the ICC is not an obstacle to the jurisdiction of the ICC provided that the Security Council decides so."

The fact that the US is also not a state party to the ICC does not seem to be an obstacle, too, I guess? What a wonderful world we live in.

Any comments by legal experts on this?

[Igel]

2. The US's objection is trivial. But it's the US's

objection, and therefore some people consider it much more important than the fact that the ICC has no jurisdiction over the people in Sudan, and that the Sudan government has rejected ICC oversight out of hand. In other words, there's no way to get the malefactors to court, and there's no way to compel Sudan to do so. (It's not like the US has great pull with Sudan; those that have pull also have incentives to placate Khartoum.)

What we're left with is sending in kidnapping teams. Do people realy want the US to either get other countries to send in commandos to kidnap suspects, or to send in commandos themselves? Dunno.