Global Policy Forum

By Joanne Mariner

Just two weeks ago, the International Criminal Court's prosecutor, Luis Moreno Ocampo, announced that he was opening an investigation into atrocities in Darfur. His decision to investigate comes after the March 31 resolution of the U.N. Security Council that referred the situation in Darfur to the ICC. Darfur is typically spoken of as a humanitarian crisis, but the characterization is deceptive. Unlike the destruction wrought by tsunamis or hurricanes, Darfur's terrible human and material devastation was caused by men. The countless acts of rape, murder and forced displacement carried out in Darfur are not lamentable tragedies; they're crimes. It is the job of the ICC prosecutor to identify the perpetrators of these crimes and bring them to justice.

The Sudanese Government's Stance

There is nothing easy about the prosecutor's task. At every step of the way, the Sudanese government can be expected to try to thwart his efforts and obstruct the progress of the case. In April, immediately after the Security Council decision to refer the Darfur case to the ICC, the government announced that it would never turn over Sudanese citizens for trial abroad.

The government's reasons for wanting to avoid cooperation are not hard to discern. Although officials in Khartoum like to describe the situation in Darfur as a tribal conflict, beyond their control, the government's responsibility is well documented. Arab militias known as Janjaweed may have committed much of the violence in Darfur, but they were armed and funded by the government. And many attacks on civilians were carried out by Janjaweed and Sudanese military forces acting in concert.

High Sudanese officials responsible for formulating and implementing the government's Darfur strategy no doubt fear prosecution. Although a list compiled by a high-level U.N. commission of fifty-one suspects to be potentially prosecuted for crimes in Darfur is secret, it likely includes at least a couple of senior officials in Khartoum. And with former Yugoslav President Slobodan Milosevic now on trial in The Hague, the prospect of high-level international prosecutions is quite real.

The ICC's Principle of Complementarity

With over two million people displaced, and hundreds of villages burned and looted, it is impossible for the Sudanese government to deny the enormity of the crimes that have been committed in Darfur. But while it cannot pretend that trials are unwarranted, it can assert that the ICC's brand of justice is.

What officials in Khartoum can try to do to - and what they appear to be doing - is undermine the ICC's claim to jurisdiction. Importantly, unlike the ad hoc tribunals set up for Bosnia and Rwanda, the ICC does not take precedence over domestic courts. According to the principle of complementarity, a key component of the ICC statute, the court can only take jurisdiction over crimes when national courts are unwilling or unable to prosecute them.

Under the court's rules, a finding that a state is unwilling or unable to prosecute the crimes is a prerequisite to a formal decision to start an investigation. With regard to Darfur, therefore, the ICC prosecutor has indicated that this hurdle has been cleared.

But the ICC's rules give the Sudanese authorities the power to challenge the prosecutor's determination. By filing an admissibility challenge under the ICC statute, the government might hope to block the case or, at minimum, to slow its progress. (If such a challenge is filed, the ICC prosecutor must suspend his investigation until the court decides the challenge.)

Khartoum has yet to file an admissibility challenge, but it has been busy laying the groundwork for one. The basis of its claim would be that, in fact, the crimes in Darfur are being investigated and prosecuted domestically.

The Sudanese Judiciary's Inability to Dispense Justice

In April, in response to the Security Council resolution, Sudanese officials said that the government was committed to prosecuting the perpetrators of Darfur's crimes. Sudanese Information Minister Abd-al-Basit Sabadrat declared, in a television interview about the resolution, that the government was "confident in the Sudanese judiciary's ability to dispense justice."

Given that the Sudanese courts had already had plenty of time to prosecute the crimes in Darfur, and had manifestly failed to do so, few took the government's statements seriously. As the high-level U.N. commission that investigated Darfur had found, the Sudanese government can point to "very few cases of individuals who have been prosecuted, or even disciplined, in the context of the current crisis."

Still, the prosecutor's announcement two weeks ago seems to have given additional impetus to Khartoum's effort to showcase a domestic alternative to the ICC. Just last week, the Sudanese government established a special court that it claims will try alleged war criminals from Darfur. And on Saturday, in a remarkable display of judicial dispatch, the head of the court announced that the first such trial had begun. The defendants are ten men accused of committing rape and robbery in Darfur.

Amnesty International and other human rights groups expressed skepticism at the government's belated display of interest in justice. "We fear that the establishment of the special court may just be a tactic by the Sudanese government to avoid prosecution by the International Criminal Court," an Amnesty spokesperson said bluntly.

As the U.N.'s high-level commission emphasized, the Sudanese justice system is simply not fit to try the crimes in Darfur. "Sudanese criminal laws do not adequately proscribe war crimes and crimes against humanity, such as those carried out in Darfur, and the Criminal Procedure Code contains provisions that prevent the effective prosecution of these acts," the commission noted.

And there is little doubt, given their lack of independence, that domestic Sudanese courts would be neither willing nor able to prosecute the senior officials implicated in Darfur's crimes.

What's Next

Sooner or later - hopefully sooner - any jurisdictional disputes regarding the ICC's work in Darfur will be put to rest. Sudan, as a member of the United Nations, will be bound to cooperate with the ICC by, among other things, allowing the prosecutor and his team admission to Sudanese territory and access to relevant Sudanese government documents. At some point, after arrest warrants are issued, the government will be asked to turn over suspects for trial.

Although a spokesman for the prosecutor has promised that the Darfur investigation will be "quick and judicious," few expect arrest warrants to be issued before the end of the year. In the meantime, it is crucial that witnesses and victims of human rights violations be protected from intimidation and that crime sites such as mass graves be protected from tampering. Any effort by Khartoum to destroy evidence, intimidate witnesses, or unlawfully obstruct the ICC's investigation into Darfur should not be countenanced. It would be a direct challenge to the Security Council's authority in referring the Darfur case to the ICC, and would threaten the future of international justice.

The prosecutor's progress over the next year in investigating and prosecuting this case will be crucial both to the people of Darfur and to the credibility of the court. Bringing justice to Darfur will not be an easy task, but it is a supremely necessary one.