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.
De Waal noted that the systematic scorched-earth campaigns, murders and rapes of the people in Darfur are grossly disproportionate to the military threat of the rebellion. They are the deliberate destruction of a community. “This is the routine cruelty of a security cabal, its humanity withered by years in power: it is genocide by force of habit,” he wrote in The London Review of Books.
Some progress has been made to resolve the conflict. One of the rebel groups recently signed a peace deal with the Khartoum central government. However, Eric Reeves, an American academic who has written extensively on the region, noted that this agreement is only as good as the progress Khartoum makes meeting the various benchmarks in the deal. The government has systematically failed the standards of all previous peace agreements and ceasefires. “There is rampant bad faith,” he said in an interview. There is also still violence on the ground. A recently proposed UN peacekeeping mission would take at least six months to get into Sudan, if it gets there at all. Khartoum has not yet said it will allow such a mission, and the resolution the Security Council just passed only authorizes an assessment for a peace mission, not the intervention itself. Reeves noted that any intervention would need a mandate to use force in order to be effective against the Janjaweed.
The ICC was created to prosecute crimes such as those taking place in Darfur, but building criminal cases amid ongoing violence is a daunting challenge. There is inherent conflict in trying to deliver justice in an area without peace; prioritizing either peace or justice poses political choices no one wants to make. The stakes for the new court are high.
“Most people here realize we are now under a magnifying glass,” an ICC official recently told a New York Times reporter. “It could make or break the institution.”
The ICC was never intended to operate in isolation. International forces serve arrest warrants, and ICC personnel need access to the conflicted country to gather evidence. No ICC investigators have thus far entered Sudan–the government won’t permit it. ICC prosecutor Luis Moreno-Ocampo told the United Nations General Assembly last December that “continuing insecurities in Darfur did not allow for an effective system of victim and witness protection.” This has forced his office to collect evidence and interview witnesses outside of Sudan and “is a serious impediment in effective investigations.” The ICC is still in its evidence-gathering phase and struggling against a hostile government. Mere discussion of the ICC cannot happen openly in Sudan for fear of government repression.
One of the problems the ICC faces is that it relies on pressure from the international community to help bring perpetrators of crimes against humanity to justice. The government in Khartoum won’t cooperate with the ICC unless it is forced to do so. Last year the Security Council passed an unprecedented three resolutions against Sudan in one month. But these resolutions had little real consequence. For all the media attention, UN resolutions and diplomatic negotiations on Darfur, the international community is loath to commit to any action. Reeves noted that the Khartoum government sees this talk for what much of it is–empty threats.
Without a substantial UN or NATO intervention, it will be extremely difficult for the ICC to build compelling cases against high-level officials in a timely manner. Many observers have noted that one of the reasons the government has been resistant to UN involvement is fear that UN forces will be used to serve arrest warrants from the ICC.
It is also possible that the ICC investigation has brought more violence to the conflict. Even before the ICC referral was announced, the government in Khartoum came out fighting. Military and government officials made repeated claims that war would start again if the ICC began to prosecute, some warning that it would become another Iraq. Agence France Press quoted Sudan President Omar Bashir as saying, “Thrice in the name of Almighty Allah…I shall never hand any Sudanese national to a foreign court.” He warned that Darfur would become a “graveyard” for international forces.
A UN commission of inquiry on Darfur recommended the referral to the ICC and provided the ICC’s prosecutor with a sealed list of fifty-one people accused of crimes against humanity and war crimes in Darfur. While the prosecutor is not bound to this much-discussed list of names, the specter of prosecution has clearly instilled fear in the Sudanese government in Khartoum. Reeves speculates that the list likely includes First Vice President Ali Osman Taha, Janjaweed and rebel officials, and very possibly President Omar Bashir. Many advocates of the ICC suggested that the fear of looming prosecution would act as a deterrent for the military and government officials in Sudan. Reeves, however, disagrees: “One of the most disingenuous moments in the ICC referral was the notion that this might have a deterrence. This will not have a deterrent effect. It will make the regime more aggressive.”
A marked government has little to lose. Last year, Kofi Annan admitted to the UN General Assembly, “The possibility cannot be excluded that those who may believe that they are on the commission’s sealed list of war crimes suspects will resort to direct attacks against…international personnel, or will try to destabilize the region more generally through violence.”
Khartoum’s violent threats are the reflexes of a government that is clearly cornered. No one has suggested that the ICC is not right for the situation; it is simply a lot to ask an untested court to accomplish alone and quickly. Even with the progress made, the government may be allowed to stay safely in that corner for quite some time. Indeed, it has done so for years. “It’s not a question of what should be done. It’s a question of how many will die. We know we need force; 7,000 are dying every month and will continue to die,” Reeves observed.
“After the ICC referral, there was a weakening of political resolve in the Security Council and among member countries. This is very problematic,” Deirdre Clancy said in a phone interview.
Meanwhile, those in Darfur wonder what has happened to The Hague. “The victims who must flee their homes only to see their wives and daughters raped and their husbands and sons shot favor the use of the International Criminal Court,” said Refugees International worker Mamie Mutchler after visiting Darfur. “It seems only fair that their voices should weigh heavily in this debate.” NGOs and human rights organizations in Sudan have suggested that the public is losing faith in the ICC as they can’t see any progress.
International officials are already starting to get restless. Louise Arbour, the UN High Commissioner for Human Rights, recently called upon the ICC “to more robustly and visibly discharge its mandate and the referral by the Security Council.” But the ICC cannot fulfill its mandate with visibility, when any visibility at all is a security risk for witnesses, ICC staff and possibly the whole region. Sudan’s minister of justice explained the sense of insecurity: “Many difficulties hold back efforts to track the criminals…. Even the witnesses run for their lives.”
This is the context for the ICC’s first cases. While the UN assembles a peacekeeping mission that is unlikely to have the mandate or numbers to be successful in Sudan, and as the United States and NATO continue to drag their feet, the ICC investigation slowly moves on, struggling to bring a measure of justice to areas the rest of the world won’t touch.