Global Policy Forum

By Stephanie Giry *

In September, the Bush administration went out on a limb to call the ethnic cleansing in Darfur a "genocide" and threaten UN sanctions, only to balk at more concrete measures. Now, the recommendations of the UN commission that investigated the crisis - which rest on questionable legal grounds - promise to be just as ineffective. The panel has urged the Security Council to refer the matter to the new International Criminal Court, the "logical" place, Secretary General Kofi Annan has said, to try these crimes. Though the suggestion may seem sensible, there's one big problem with it: Most of the perpetrators in Darfur can't be tried before the ICC because Sudan hasn't ratified the court's founding statute.

The panel's failure to admit this limitation is staggering. It is so staggering, in fact, that coming from a group of respected experts, it may not be an oversight at all. More likely, it's a daring strategy to expand the court's ambit over one of the world's worst humanitarian crises. Unfortunately, it's also a losing strategy. Consider the basics. The Rome Statute, which created the ICC, gives it the authority to handle genocide, crimes against humanity, war crimes and crimes of aggression. But the court can only consider these crimes if it also has jurisdiction over the accused. The Rome Statute requires that those persons be either nationals of a state party to the treaty or people acting there. Sudan hasn't ratified the statute, so the ICC could only hear cases from Darfur that involve non-Sudanese nationals from states recognizing the court - hardly the bulk, one suspects, of the perpetrators.

Yet the UN panel ignored this requirement, invoking instead parts of the treaty that set out how ICC procedures get started. The ICC's jurisdiction can be "triggered," the panel argued, if the Security Council refers a case to the court's prosecutor. Here, it took liberties with an important distinction between what cases the ICC has authority to hear and how those can be brought to it. Meanwhile, it accomplished little by recommending a procedure for funneling cases that can't be prosecuted.

Another problem is that the Security Council can't be trusted to act on the commission's request. Washington has already said it will oppose any measure that could boost the ICC's legitimacy; it favors handing the Darfur cases to a new ad hoc tribunal. There's also China, which spent the summer bickering over the wording of Security Council resolutions designed to pressure Khartoum into stopping the killings. As Washington sponsored drafts threatening sanctions, Beijing, which invests heavily in Sudan's oil industry, worked hard to defang them and then abstained from voting.

By overlooking these politics and the inherent limits on the ICC's authority, favoring talk of accountability over real prospects for it, the UN panel may have harmed its cause and its court. Curiously, in the process, the panel has begun to sound a lot like the Bush administration, which has denounced the massacres more than most governments but done as little to stop them, thus eroding rather than upholding its obligations. Whether Washington's failure to stop a "genocide" might damage the standard itself is a question that seems not to have even crossed the minds of White House staffers.

With the UN panel's new report, the United States now finds itself in an awkward position: opposing the Security Council's mobilization, which it spent the summer advocating, because of a longstanding beef against the ICC. Once again, it is at odds with the UN, arguing that while the Darfur massacres are genocide, they aren't for the ICC to look into, whereas the UN panel claims that they aren't genocide but must be examined by the ICC.

Yet the more the two disagree over terminology and methods, the more alike they become: In handling the crisis in Darfur, they seem equally ineffectual and perhaps even irresponsible. Together, they have muddled an important legal standard and damaged the credibility of an important institution, complicating the prosecution of the massacres in Sudan today and the prevention of crimes elsewhere in the future.

About the Author: Stephanie Giry, an associate editor at Foreign Affairs, was a lawyer with the UN Office of Legal Affairs in 2002.