Global Policy Forum

By Elise Keppler*

The United Nations Security Council has taken some belated measures to stop the violence in Darfur, but its response has been woefully inadequate. Prosecution of those responsible could make a real difference. Given the gravity of the crimes and the Sudanese government's unwillingness to act, investigation and prosecution by the International Criminal Court could hold the key.

The atrocities in Darfur have been unspeakable. The Janjaweed militias, with the active backing and participation of Sudanese government forces, have looted, raped and massacred. As part of an ethnic cleansing campaign, they have burnt villages and committed crimes against humanity. More than one and a half million people have been forced from their homes.

Because Sudan has not ratified the International Criminal Court treaty, a special Security Council referral would be needed in the case of Darfur. Such a referral could well encounter the opposition of the United States, which loathes the Court. But it was created to address just these kinds of serious crimes. If the Court is kept out of the Security Council debate out of fear of the ire of the US, it could threaten to make the Court itself seem irrelevant when referrals are needed in years to come.

Britain has a critical role to play. In the past, it has supported the Court, most notably when the treaty to set it up was agreed in Rome in 1998. In theory at least, that support still stands. In the last two years, however, Britain has repeatedly failed to rally behind the Court in the face of US efforts to undermine its integrity.

Thus, last June, when Washington was trying to force through a Security Council resolution which would grant American military and civilian personnel in UN operations immunity from prosecution before the Court, Britain was prepared to let the resolution succeed. It was the only Security Council member, that had ratified the Rome treaty, to take that stance in the face of UN Secretary-General Kofi Annan's warnings that ‘blanket exemption is wrong' and ‘of dubious judicial value'.

In the end, the Americans backed down when it became clear that they were certain to lose the vote; but Britain did nothing to bring that victory closer. When the issues of principle are so important, as is the case with Darfur, it must be hoped that London will stand firm.

Lame Efforts

Khartoum has feigned lame efforts to hold those responsible to account. The climate of impunity is nothing new for Sudan. Impunity for massive abuses of human rights committed by the army and ethnic militias in the separate twenty-one year civil war in southern Sudan undoubtedly contributed to the use of similar tactics in Darfur. Now, the pattern could be broken.

As the first permanent international tribunal, the Court was established to ensure justice for genocide, war crimes, and crimes against humanity in cases where national systems are unable or unwilling to prosecute. Whether or not the crimes committed in Darfur meet the criteria for genocide, it is clear that they are war crimes and crimes against humanity.

The US is not the only government which is likely to be uncomfortable about a referral to the Court. China has strong oil interests in Sudan; Russia supplies arms to Khartoum. A Security Council referral is likely to become a real issue soon. In October, the Council authorised the establishment of an independent international Commission of Inquiry. The Commission is investigating violations of international humanitarian and human rights law in Darfur, deciding whether or not acts of genocide have occurred, and identifying the perpetrators with a view to ensuring that those responsible are held accountable.

This commission may sound like yet another talking shop. In reality, its significance cannot be overstated. Similar commissions for the former Yugoslavia and Rwanda led to the creation of international tribunals, where the former Serb leader, Slobodan Milosevic, and Rwandan genocidaires are now being prosecuted. The Commission is due to report back to the Secretary-General towards the end of this month. Given the scale of the crimes, a recommendation of a Court referral is likely.

Strong Stands

It would be possible for President George Bush's administration to put its antipathy to the Court to one side. It has taken a strong stand against human rights abuses in Darfur, even describing the killings as genocide. Washington contends that its concerns about the Court are based on fears that American nationals might be tried in politically motivated cases. If that is true, Security Council referral of a situation where no US nationals are involved should not pose a problem.

One must hope that Washington will support – or at least abstain on – such a Security Council referral. Failure to support prosecution of the perpetrators of what it has described as genocide would undercut the US claim that it is committed to helping the people of Darfur. It would demonstrate the discrepancy between Washington's position that it is simply concerned about the fate of Americans and the reality of its blanket hostility to the Court itself.

The US might advocate the creation of an ad hoc international or mixed national-international tribunal as an alternative. But an ad hoc tribunal would take a long time to set up and staff – something the people of Darfur do not have. Other Council members have little appetite for the creation of new tribunals. Britain is not alone in its criticisms of the expense and delays of the Yugoslav and Rwandan tribunals. Indeed, it was the recognition that an ad hoc tribunal could not be created every time there was a need for one that prompted the establishment of the Court in the first place.

The Sierra Leone Special Court, a mixed tribunal which includes both Sierra Leonean and international judges, is less expensive. But it was set up at the urging of the Sierra Leone government itself and can function only because of that government's commitment. Cooperation and commitment to justice are two things that Khartoum seems unlikely to provide. Even with strong support from the Sierra Leone government, the Special Court struggles because of a lack of cooperation from other states. Because of time and resource constraints, there is a real risk that fugitives from all of these ad hoc tribunals could escape justice. As a standing institution, the Court is less susceptible to time pressures and better placed to outlast a lack of cooperation.

It remains to be seen whether Britain would support US proposals for an ad hoc tribunal for Darfur instead of a referral to the Court. Certainly, its willingness to look the other way while the US sought to obtain unlawful guarantees of immunity for its citizens does not set a good precedent. Because of Britain's special relationship with the US, it is uniquely positioned to use its good offices to persuade the administration not to block referral to the Court. Britain should stress its objections to the creation of new ad hoc tribunals and state that, as a party to the Court treaty, it sees it as the forum to ensure justice is done in Darfur.

Britain, which has highlighted the nightmare in Sudan, could take the lead in mobilising a referral, despite Washington's concerns. The people of Darfur deserve nothing less.

About the Author: Elise Keppler is counsel with the International Justice Program at Human Rights Watch.