Global Policy Forum

By Stéphanie Maupas and Claire Tréan

The United States does everything to avoid having the International Criminal Court deal with the violence in western Sudan. All the associations for the defense of human rights would like the International Criminal Court (ICC) to try the Darfur case, as the UN commission on the Sudan recommended in its February 1 report to the Security Council, in the hope that the prosecution of those responsible for the crimes committed in this region "would contribute to the restoration of peace."

For non-governmental organizations (NGOs), as for the European countries which have supported their request, the Darfur case, in view of the exactions that have been perpetrated there, corresponds very precisely to that for which the International Court was created, that is, to put an end to the impunity of the authors of the most serious crimes. That seriousness has been confirmed by the UN commission, which talks about "crimes against humanity" in its report.

Universal Vocation

An ICC seizure of jurisdiction by the Security Council would, moreover, have constituted the court's consecration in the eyes of human rights militants, the first official acknowledgement of its universal vocation. Darfur is one of the cases that the ICC cannot try on its own, on the sole initiative of its prosecutor, since the Sudan did not adhere to the treaty which created the Court. In such cases, the Security Council only may mandate the ICC. If it were to do that in the name of the entire international community, it would confirm the legitimacy of the international jurisdiction against all those who have refused to accept it, beginning with the United States, which has indulged itself in an out and out war against the ICC for several years.

The NGOs were able to hope for a while that they would be victorious. The Americans were, in fact, the first to officially describe the events at Darfur as "genocide," which in international law requires prosecution. Caught in the trap of this language that it could not leave without a follow-up, wouldn't the US be forced to cede to the Europeans' demand to empower the Court, or at least to let them do it, by limiting itself to an abstention in the Security Council?

That was underestimating the American Administration's hostility to the ICC. For several weeks, animated secret negotiations have been taking place between the capitals and in the corridors of the UN Security Council. The NGOs work the Europeans tirelessly to keep them on track and the Americans reject any concession, reopening one of the conflicts in the heart of Atlantic relations that George Bush's passage to his second term has not been sufficient to eliminate.

In order to find a way out of this transatlantic controversy, Great Britain at one point imagined a compromise that made the NGOs shudder. Britain suggested that the United States renounce its veto in the Security Council opposing the Court taking legal jurisdiction over Darfur, in exchange for which the Council would guarantee in substance that American soldiers in foreign operations would escape the ICC's jurisdiction. This immunity of jurisdiction for its citizens is what the United States has obstinately sought for several years: by way of blackmail and pressure, the US concludes bilateral agreements with states stipulating that American citizens may not be the object of a transfer to the ICC; twice, in 2002 and 2003, the US wrested a one-year declaration from the Security Council guaranteeing immunity during that year to personnel participating in operations mandated by the UN. These declarations infringe on the ICC's status; in July 2004 (after the scandal of Abu Ghraib prison in Iraq) the Europeans rebelled and the Council refused to subscribe to the American demand.

The idea of a compromise advanced by the British with regard to Darfur provoked protests by NGOs like the International Federation for Human Rights (IFHR), which, in one of its recent communiqués, called on Security Council members not to indulge themselves in such a bargain, definitively prejudicial to the ICC. However, in any case, the United States was not ready to agree even to this proposed arrangement: at no price does it want the Security Council to confer legal jurisdiction on the ICC.

Campaign of Denigration

Consequently, the conflict remains open, and, if the proposed resolution on Darfur that the United States is circulating at this moment in the Security Council says that criminals must be prosecuted, it does not say by whom. The proposal Washington has advanced in recent weeks continues to run up against Europeans' opposition on this point. The United States suggests that a new ad hoc tribunal be established (on the model of those in The Hague for the former Yugoslavia and in Arusha for Rwanda) and that it would benefit from the logistics of the Arusha tribunal. Pursuing their campaign of denigration against the ICC, the Americans allow it to be understood that the latter resembles "a European court" and that an "African tribunal" would be preferable. To which the organization Human Rights Watch responded Wednesday, recalling that Africa had played a major role in the ICC's creation and that half the member countries of the African Union have ratified the treaty that created it.

European countries, for their part, point out that the Arusha tribunal is already over-taxed with Rwanda cases and that the Security Council (including the United States) has been recommending for several years that these two ad hoc tribunals, which are expensive, accelerate their work and close their doors more rapidly; finally, that the ICC's mission by definition is to substitute for all these ad hoc tribunals. That was the purpose for which it was created.

Translation: t r u t h o u t French language correspondent Leslie Thatcher