Darfur and the ICC
Justice is the Key to Recovery

Ever since the Nuremberg war crimes trials after World War II, the United States has championed international law as a means to end impunity for war crimes and genocide while promoting American principles like due process, equality before the law and the protection of basic human rights. The United States was instrumental in creating tribunals to prosecute the individuals responsible for genocide and ethnic cleansing in Yugoslavia and Rwanda, and actively participated in the process that created the International Criminal Court (ICC).

Although the Bush administration has turned its back on this legacy by working to undermine the ICC, the U.S. should still continue to work with our friends and allies to uphold our nation’s proud tradition of championing international law and human rights. The ongoing atrocities in Darfur represent one of today’s greatest challenges for the global community to uphold human rights and bring war criminals to justice. Given its current mandate and legal authority, the ICC is the most qualified mechanism for securing justice for the victims in Darfur.

Background
In January 2003, a brutal campaign of genocide began in the war-torn region of Darfur in Western Sudan. Gangs of Arab militia, called the Janjaweed, singled out the non-Arab population of Darfur. Since then, more than 400,000 people have been killed and 2.4 million have been displaced in refugee camps in Sudan and neighboring Chad.

Despite denials from Sudanese leaders, the Janjaweed have engaged in aerial bombardments of countless villages in Darfur with government planes and helicopters. This overt support by the Sudanese government is tantamount to complicity in the crimes committed by the Janjaweed, namely ethnic cleansing and genocide.

On March 31, 2005, the U.N. Security Council referred the situation in Darfur to the ICC. The U.S., a staunch opponent of the ICC, abstained from the Security Council vote in favor of the referral.

In response to the Security Council referral, the Chief Prosecutor of the ICC, Luis Moreno Ocampo, began an intensive investigation into the atrocities committed in Darfur. In December 2005, Ocampo briefed the Security Council on the first phase of his investigation. Ocampo reported that accountability for the most serious crimes allegedly committed in Darfur was critical to achieving an effective transition toward a sustainable peace. In the second phase of his investigation, he said he would focus on a selected number of incidents that implicate individuals bearing the greatest responsibility for crimes of genocide.

In his Security Council briefing, Ocampo stressed the complexity of conducting an investigation on Darfur given the region’s inaccessibility and the political dynamics on the ground.

Quest for Justice
Experts from all fields agree that people are profoundly affected by atrocities such as ethnic cleansing and genocide. The psychological, physical and collective effects of such acts resonate for generations. In order for people and communities to recover, transitional justice mechanisms like the ICC are needed to provide retribution and closure. The ICC can ensure justice by prosecuting those individuals most responsible for atrocities, as well as potentially deter future crimes from being committed.

The ICC follows the path of successful ad-hoc tribunals such as the International Criminal Tribunal for the Former Yugoslavia and International Criminal Tribunal for Rwanda and seeks to prosecute targeted high profile war criminals. The investigation and eventual prosecution of those most responsible for genocidal acts will hopefully provide the people of Darfur with a sense that the ICC has assisted their quest for justice.

Aside from providing much needed accountability, the ICC is also in the unique position to serve as a potential deterrent for future incidents of war crimes, crimes against humanity and genocide in Darfur. Because it is a permanent international criminal court and can investigate ongoing incidents, an indictment or conviction from the ICC can send a clear message to human rights violators that such acts will be met with swift justice. Despite the importance of accountability and deterrence, however, the Darfur case presents a unique set of challenges facing the ICC.

Challenges Facing the Court
While every case before the ICC is challenging, the Darfur case presents its own set of obstacles. The main problem is the Sudanese government. It is not pleased with the international community’s scrutiny over Darfur, and has been less than helpful in assisting the ICC’s Office of the Prosecutor in its investigation. For example, one complication caused by the government is the issue of jurisdiction. While the ICC has obtained jurisdiction of the Darfur case from the Security Council referral, the Rome Statute explicitly states that under the principle of complementarity, the ICC cannot conduct an investigation or prosecution where there are competent national courts that are willing and able to do so.

In an implicit effort to thwart the prosecutor’s investigation, last November the Sudanese government issued a decree establishing two new “Special Courts” in the cities of Geneina and Nyala. Prosecutors and judges have been appointed to staff those courts, and their jurisdiction extends to crimes committed by members of the Janjaweed in Darfur. The establishment of these Special Courts, however, is more indicative of an appeasement on the part of the Sudanese government than a genuine attempt to provide criminal accountability for those guilty of genocide and other crimes in Darfur. Recently, a top U.N. official, Dr. Sima Samar, who is heading the U.N. inquiry into Darfur, has rejected both Special Courts. Dr. Samar has publicly stated that the cases before these courts either predate the Darfur crisis or do not involve individuals in positions of responsibility. Also, Ocampo has made clear that he will discuss these Special Courts with the Sudanese government and determine whether they are in fact competent under the ICC’s standards. However, the prevailing impression from the prosecutor’s office is that these Special Courts are intended to preclude, not ensure justice.

Other challenges include the lack of access to Darfur, as the Sudanese government has not allowed Ocampo and his team into the region. This lack of cooperation, combined with the instability of the area has complicated the investigation. Nonetheless, the prosecutor’s team has made several trips to Sudan and has gathered a significant amount of evidence from witnesses outside of Darfur. While a comprehensive mission to the heart of Darfur may not be possible in the foreseeable future, the Office of Prosecutor has secured other ways of gathering evidence and testimony to prepare its case. However, a continued lack of cooperation by the Sudanese government will hamper the prosecutor’s ability to pinpoint those individuals behind the most serious crimes and the subsequent issuance of arrest warrants.

Conclusion
In Darfur, a campaign of genocide continues. More than 500 people are killed each day. Almost half a million lives have already been lost to crimes committed by the Janjaweed, and by extension, the Sudanese government. It is therefore imperative that the ICC provide swift and impartial justice for the surviving victims and their families. The Office of the Prosecutor must continue to work quickly and diligently to overcome the obstacles it faces in investigating the crimes committed in Darfur, and ensure that, at the very least, victims obtain accountability and justice.

Contributing Writer: Golzar Kheiltash


Updated April 10, 2006