Global Policy Forum

By Adam Wolfe

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 (ICC). Washington has worked to undermine the ICC and is loath to endorse any measure that would lend credibility to the court.

Sudan is not party to the ICC; therefore, the UN Security Council must endorse an ICC 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 ICC role. The US is the biggest obstacle to the ICC 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 ICC 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 ICC'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 UN Investigation in Darfur

A UN 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 ICC 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 US 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 US has led a campaign to undermine and invalidate the ICC 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 UN 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 US 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 ICC and US Opposition

The ICC operates outside the UN 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 ICC 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 ICC 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 US 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.

Washington had cast a wary eye on the court since serious discussion of its founding began to take shape in the 1990s, but the Bush administration has elevated the level of this skepticism to open hostility. At the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, from which the Rome Statute emerged, the Clinton administration successfully lobbied to weaken the court's ability to infringe on sovereignty of any state with a functioning legal system and sought to create conditions in which US soldiers and diplomats would be shielded from prosecution. After achieving most of the administration's goals, President Clinton grudgingly signed the Rome Statute.

President Bush nullified the US' signature shortly after being sworn in and went to work undermining the ICC With Security Council Resolutions 1422 in 2002 and 1487 in 2003, the Bush administration successfully lobbied for the immunity of personnel operating in any UN peacekeeping operations. However, in 2004 the Bush administration did not seek to extend this immunity after allegations of prisoner abuse emerged in Iraq and it was clear the Security Council would not grant the US the exemption. A threatened US veto also secured peacekeeper immunity for non-ICC states in Resolution 1497, authorizing a stability operation to Liberia. Washington also had any reference to the ICC removed from Resolution 1502, which condemned the bombing of the UN Headquarters in Baghdad. The most visible way Washington has sought to undermine the ICC has been through bilateral immunity agreements with states that receive military aid from the US, with the exemption of N.A.T.O. members and countries providing military support to the operations in Afghanistan and Iraq.

The UN investigation in Darfur has allowed supporters of the ICC to put Washington in the uncomfortable position of having to choose between supporting the court or blocking another UN Resolution aimed at ending the fighting in Sudan's western region. Washington has floated a proposal to expand the International Criminal Tribunal for Rwanda (I.C.T.R.) in Tanzania to try those accused of humanitarian crimes in Darfur. All other Security Council members have been cool to this proposal -- the US had been pressing for the I.C.T.R. to wrap up its operations until the current debate on Darfur emerged in the end stages of the UN genocide investigation, and there is little support for marinating the I.C.T.R. since the ICC has begun operating at The Hague.

The optimal decision from Washington's vantage would be to abstain from a vote on granting the ICC authority over Darfur, but this would limit the Bush administration's ability to shape the next Security Council Resolution on Sudan. The US has invested a great deal in ending the country's North-South civil war, and Washington does not want to forfeit its control in the reconstruction of southern Sudan. The Bush administration would like to insert 10,000 UN peacekeepers and 915 international police officers into southern Sudan, as well as to expand the authority of the African Union (A.U.) monitors in Darfur to allow the use of force to protect citizens threatened by either party in the conflict. Without US support, it is unlikely that this authorization will be granted to the A.U. monitors in the final bill.

Can a Judge End a War?

It is not clear that granting the ICC 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 ICC 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.

This appears to be the current situation in northern Uganda, where the ICC has refused to halt its investigations of the Lord's Resistance Army even after the Ugandan government has asked for the court to back away from its investigations until a negotiated settlement is reached between the parties. While it is possible that an ICC investigation would discourage future atrocities by eliminating the current environment of impunity in Darfur, it is also possible that it would encourage both sides of the conflict to perpetuate it indefinitely.

The conflict has eliminated much of the food supply in Darfur, and humanitarian aid agencies are unable to reach vast areas of the region, driving up the price of food beyond the reach of most Darfurians. The janjaweed have government backers to provide supplies; the western rebels can count on their counterparts in the east and across the border for subsistence. Those caught in the fighting, unable to reach refugee camps, will likely starve in the coming months. The conflict must be resolved quickly for this to be prevented; an ICC investigation -- even if it proves effective in eliminating the environment of impunity -- is unlikely to rapidly force a negotiated settlement.

Conclusion

The current debate over the ICC's role in Darfur has little to do with ending Sudan's conflict; it is about establishing protocols for the next Darfur. If the US concedes authority to the ICC 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 US can prevent the ICC from gaining jurisdiction over Darfur, it will be better able to do the same the next time around. The US would like to remain unbound in conducting its international affairs; the E.U. and other ICC 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 US' opposition to the ICC, and even those countries who do not support the court -- China and Russia -- might be willing to support ICC jurisdiction in Darfur to further this drift toward multipolarity. While granting ICC 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 US' 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.