On March 31, 2005, the UN Security Council voted to refer the ongoing atrocities in Darfur to the International Criminal Court (ICC), which was created in 1998 to prosecute the gravest international crimes. That evening the ICC, which had not yet held a trial, was handed a genocidal quagmire, a hostile government and a near-mandate to prosecute.
International trials conducted in public seek to repair the power imbalance between criminal and victim and are a visible reactivation and reassurance of justice. The ICC hopes to achieve this in Sudan. But the new court is untested; no one knows how the trials will affect complex political situations like the one unfolding in Darfur.
The ICC’s first year in operation has shown that pursuing justice does not always create peace. Deirdre Clancy, a coordinator of the Darfur Consortium, put it this way: “The ICC is a huge idea and has a huge potential to have an impact, but it’s a bunch of lawyers in The Hague negotiating an extraordinarily complicated situation with security problems” and without much international help.
The first meetings of the ICC took place some five years before the Security Council referral. One hundred sixty countries, including Sudan, participated in creating the ICC framework. The court has a mandate to bring to trial heads of states and others who have committed crimes against humanity, genocide and war crimes. It is designed to prosecute only when state courts cannot or will not. It seeks to try those responsible for the Rwandas or Holocausts of the future and, by insuring accountability, to deter them from happening altogether.
In 1997 UN Secretary General Kofi Annan made this lofty and much-repeated statement about the ICC: “In the prospect of an international criminal court lies the promise of universal justice. That is the simple and soaring hope of this vision…to ensure that no ruler, no State, no junta and no army anywhere can abuse human rights with impunity. Only then will the innocents of distant wars and conflicts know that they, too, may sleep under the cover of justice; that they, too, have rights, and that those who violate those rights will be punished.”
In the context of a strong statute and widespread international support, many believed Annan’s “never again” was coming to fruition. By the March 2005 referral, the Darfur conflict had been declared a genocide by the President of the United States, presidential hopeful John Kerry, then-Secretary of State Colin Powell and the entire US Congress. The UN described the conflict as “the world’s worst humanitarian crisis.”
The largest country in Africa, Sudan is comparable in size to the United States east of the Mississippi. Its regions have never been united within the colonial boundaries inherited from Egypt and England by its first Arab leaders in 1957. The country has been at civil war for all but about a decade of its existence, largely because wealth and power are disproportionately focused in the Arab-dominated central region. When an armed resistance movement surfaced in Darfur in 2003, a long-neglected region in the West, the central government struck back hard. It solicited and armed a local nomadic group ethnically tied to the Arab government to fight the rebels and, by association, the local Fur population. The Arab fighters became known as Janjaweed. Alex de Waal, a consultant to the Darfur peace negotiations, described the conflict as a “counterinsurgency on the cheap.” A military memo leaked to Sudan Radio Service gave the Janjaweed orders to kill all Fur leaders, representatives and intellectuals and to use all means possible to capture Fur cattle, donkeys and horses. The memo spelled out a plan aimed at eliminating “black tribes” from the region. An estimated 450,000 people have died in Darfur, and more than 2 million, one-third of Darfur’s entire population, have been displaced.