Monday, December 19, 2005

Sudan Blocks ICC Probe on Darfur

The government of Sudan has announced it will not cooperate with the International Criminal Court investigation into atrocities in Darfur. No one should be surprised, since the Sudanese government is itself complicit in the very acts being investigated. In a report released last week, Human Rights Watch lays out in great detail the responsibility of the Sudanese government:

Since July 2003, Sudanese government forces and militia forces, known as "Janjaweed", have committed crimes against humanity and war crimes on a massive scale during counterinsurgency operations in Darfur, Sudan's western region bordering Chad. Civilians have suffered direct attack from land and air, summary execution, rape, torture, and the pillaging of their property.

Military services participating in the attacks on the civilian population in Darfur include the air force, army, security and intelligence services, and the paramilitary Popular Defense Forces (PDF) under the command and supervision of the army. These forces have conducted military operations in close cooperation with the Janjaweed militia, which the government recruited through informal networks of ruling party insiders, former military personnel, and leaders of nomadic tribes.

The Sudanese government at the highest levels is responsible for widespread and systematic abuses in Darfur. Based on eyewitness accounts, on-the-ground investigations in Darfur, government documents, and secondary sources, Human Rights Watch believes that President Omar El Bashir and other senior government officials, the regional administrative officials in Darfur, military commanders, and militia leaders should be investigated for crimes against humanity and war crimes, either as a matter of individual criminal responsibility or command responsibility.

The Sudanese government has failed to prosecute serious crimes committed in Darfur. Instead of pursuing accountability for war crimes and crimes against humanity committed by government officials and Janjaweed members, it has made no genuine effort to investigate -- much less discipline or prosecute --any of the individuals responsible. Instead, it has created a facade of accountability through sham prosecutions and created ad hoc government committees that produce nothing.

This development raises a couple of interesting questions.

First, what is the standard under the Rome Statute of the ICC for "complimentarity," the requirement that the ICC only prosecute cases where the state with primary jurisdiction is "unwilling or unable" to do so. Art. 17 Sect. 2 states:

In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:

(a) The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;

(b) There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice;

(c) The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.


Here, the Sudagovernmentement has said: "We have the national law authority... The government is willing and able to try to these cases." Of course, the Sudanese government has not yet brought any cases, nor does it appear likely to do so since its own actions lie at the heart of the allegations. That should be enough, given the passage of time, not to raise any objections of ICC jurisdiction under Art. 17. If however, Sudan does decide to bring its own case (regardless of whether they seriously intend to prosecute) that action may complicate the job for the ICC prosecutor who will then need to make his own assessment of compliance with Art. 17. It will be interesting to see whether Sudan attempts this kind of end run, or just continues to stone-wall.

The second issues concerns the fact that the current investigation was referred to the ICC prosecutor by Security Council Resolution 1593. Does that change what happens next? It appears the Council has an ongoing role to play here. It can and should demand cooperation by Sudan. Whether it will do so is contingent on China, which has a close relationship with the current Sudanese regime, and which abstained on 1593. But the Council need not wait untill the ICC's next progress report to demand compliance with the earlier resolution.

As some of you may recall, I supported vigorous military intervention in Darfur many months ago. I objected to the referral to the ICC so long as it was a fig leaf for inaction by the Council or a meaningful commitment of troops by NATO. Now it appears there is no humanitarian crisis to end; the "ethnic cleansing" is all but complete. Talks to end the conflict in the region are progressing slowly. Prosecution, however imperfectinadequateqaute, may be the only form of justice left. Let's see if the Security Council can have any impact on making it happen.

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