Global Policy Forum

By Jim Lobe

Despite his strong opposition, U.S. President George W. Bush is under growing pressure from human rights groups and U.S. allies to refer what his administration has called "genocide" in Darfur, Sudan, to the International Criminal Court (ICC) at The Hague. In a long-awaited presentation to the UN Security Council Wednesday, the UN High Commissioner for Human Rights, Canadian Louise Arbour, said the ICC was the best forum for investigating and prosecuting those responsible for a two-year campaign of violence and pillage that has taken the lives of as many as 300,000 African tribespeople in Sudans westernmost region.

"Referral to the ICC is the best means by which to halt ongoing violations and prevent future ones," she said. "With an already existing set of well-defined rules of procedure and evidence, the court is the best-suited institution for enduring speedy investigations leading to arrests and demonstrably fair trials," she told the Council members, supporting the recommendations made earlier by a special UN Commission of Inquiry.

Arbour's appeal was also backed up by statements of the world's two largest international human rights organizations, New York-based Human Rights Watch (HRW) and London-based Amnesty International. "The Sudanese people deserve justice and redress," said Kolawole Olaniyan, director of Amnesty's Africa Program. "It should not be denied them just because it does not sit comfortably with the USA's political agenda." "The people of Darfur continue to suffer horrendous abuses fueled by ongoing impunity for crimes against humanity," said Richard Dicker, director of HRW's international justice program. "The Bush administration's intransigence on the ICC is only delaying justice for the people of Darfur."

The administration, at whose initiative the Security Council approved the UN Commission of Inquiry, now finds itself in a serious quandary. On the one hand, it has spoken out against the violence that has been waged by the Sudanese government and government-backed Arab militias more than any other UN member-state, to the extent of calling it "genocide." On the other hand, its strong antipathy toward the ICC is preventing the Security Council from referring the case to what most international legal experts and Washington's European allies consider to be the most logical and effective forum, the ICC, to pursue the case against the perpetrators.

The administration has instead insisted that the case be referred to a new, ad hoc "African" tribunal to be set up alongside another ad hoc tribunal in Arusha, Tanzania, which has spent nearly a decade prosecuting cases against the perpetrators of the 1994 genocide in Rwanda. "The U.S. proposal to create a new tribunal for Darfur is a mirage of a solution," said Dicker. "A new ad hoc court would lack the speed and staying power to get the job done," he added, noting that the existing Rwanda tribunal issued a formal release last week asserting that its courtroom capacity was inadequate even for handling its existing caseload and that a fourth courtroom was under construction. "To complete its existing docket on schedule, the Rwanda tribunal will have to use every resource it has," according to Dicker. "The U.S. plan to graft a new tribunal on the Rwanda court's facilities is like squeezing three more passengers into an already overstuffed car."

The two-year-old ICC, on the other hand, is not only fully staffed and endowed with an impressive physical and research facilities, but it was established explicitly for the purpose of trying war crimes, crimes against humanity, and genocide. Nonetheless, the administration has opposed any cooperation with the ICC since even before it came into formal existence. Indeed, in an unprecedented action, the administration formally revoked Washington's adherence to the underlying treaty--the 1998 Rome Statute--in May, 2002, and launched a major campaign to press both the UN and other nations to sign bilateral immunity agreements (BIAs), promising never to transfer U.S. national in their custody to the ICC.

The administration has argued that the ICC threatens U.S. sovereignty and that, given Washington's military predominance and its unique responsibilities for maintaining international peace and security, its nationals are particularly vulnerable to politically-inspired prosecutions by the ICC. Although it has denied any intent to harm the Court, the administration has cut off tens of millions of dollars in military and economic assistance to some three dozen developing countries that have ratified the Statute but refused to sign BIAs on the grounds that doing so would violate the letter and spirit of the Statute. Washington also withdrew U.S. personnel from certain UN missions when the Security Council decided last year not to extend an exemption from the ICC for nationals of non-ratifying nations. A total of 97 nations, including all members of the European Union, most of Latin America and the Caribbean, and many democratically elected states in Africa, have ratified the treaty, and 139 nations have signed it.

"We will not support efforts by the international community to use the Security Council as a way of legitimizing the ICC," said Bush's war crimes ambassador, Pierre Prosper, last month in anticipation of the debate over what to do if the Commission of Inquiry recommended that the massive violations of human rights of which it had gathered evidence in Sudan be referred to the Hague tribunal. Washington has submitted a draft resolution to the Council that calls for the imposition of a travel ban and a freeze on the assets of government officials and militia leaders believed to be responsible for the violence in Darfur and for the perpetrators to be brought to justice by "internationally acceptable means."

But this wording has drawn scorn from rights activists, particularly in light of Washington's recognition of the gravity of the abuses being committed. "To ignore the ICC in this case would mean that the USA believes that the fight against impunity is a secondary consideration to its own interests," according to Amnesty's Olaniyan. "The Sudanese people's right to justice, truth and full reparations should not be overridden by the political interests of any State."

How to deal with the administration's hostility to the ICC was also the subject of an appeal released Thursday by 50 independent European and U.S. national-security specialists who said the tribunal had become an important irritant in trans-Atlantic relations. The group, whose U.S. members included a number of former senior U.S. officials in the administration of presidents George H.W. Bush and Bill Clinton, called for the European Union to guarantee ICC immunity for U.S. nationals in exchange for a halt to Washington's efforts to undermine the tribunal, a restoration of aid to developing countries that have rejected a BIA, and its acquiescence in submitting the Darfur case to The Hague. It also called for the U.S. and Europe to coordinate their policies on Sudan.

In her presentation to the Council Wednesday, Arbour said that permitting the judicial authorities in Sudan to take up the case, as Khartoum has urged since the Commission submitted its report, was a non-starter. "In my view, any new initiative proposed by the government of Sudan today to address these crimes could not be supported in light of the commission's conclusions," she said. "Despite the magnitude of the crisis, the government informed the commission of very few cases of individuals who had been prosecuted or even disciplined in the context of the situation in Darfur."