Deadly Delay on Darfur

By JOANNE MARINER

Wednesday, Feb. 02, 2005

The atrocities in Darfur continue unabated. Just last week, the Sudanese air force reportedly bombed parts of South Darfur, killing nearly a hundred villagers and forcing hundreds more to flee their homes.

There has been much talk about stopping these crimes but to date, little real effort to do so. The U.N. Security Council has passed three resolutions on Sudan in the past year without imposing economic sanctions, an arms embargo, a ban on military flights over Darfur, or any other effective measure. High U.S. officials have condemned the violence in Darfur as genocide but have insisted, in practically the same breath, that this finding does not carry with it any additional responsibility to act.

On Monday, a special U.N. commission issued a comprehensive report on the crisis in Darfur. The report detailed how the Sudanese government and its allied Janjaweed militia are responsible for war crimes and other abuses that may amount to crimes against humanity. It called on the international community to respond to these crimes in a meaningful way by prosecuting the perpetrators.

A key recommendation of the U.N. report is that the Security Council should "immediately refer the situation of Darfur to the International Criminal Court." Under Security Council scrutiny, Sudan would be required to turn over indicted suspects to the court for trial. And bringing the perpetrators to court would not only stop the crimes, but would also vindicate the rights of the victims.

There is only one problem with this plan: the United States opposes it.

The Slow Process of Creating a New Court

The U.S. is openly hostile to the International Criminal Court (ICC), largely because it fears politically-motivated prosecutions of American citizens. Rather than allow the Darfur case to be taken up by the ICC--an option widely supported by European officials concerned about the crisis--the U.S. has put forward a competing alternative.

Under the U.S. proposal, presented last week by Ambassador-at-Large for War Crimes Pierre-Richard Prosper, the Security Council would set up a new ad hoc tribunal for Darfur. The new court would be housed in Tanzania, using the facilities of the international court that currently prosecutes perpetrators of the 1994 genocide in Rwanda.

Prosper's explanation of American reasons for proposing a new court was blunt. "We don't want to be party to legitimizing the ICC," he said.

But the U.S. approach would be time consuming. To set up a new tribunal is a complicated task. It would require creating a new statute and rules for the court, recruiting staff, and electing judges. Even if the physical structures of the Rwanda court were used, as the Bush administration has proposed, it could take more than a year to get the new tribunal off the ground.

The ICC, in contrast, is already up and running. Within a very short time, it could open investigations of those most responsible for serious crimes in Darfur.

The ICC and the U.N. Security Council

The ICC was created precisely to address situations like Darfur. It has a limited mandate to prosecute genocide, war crimes, and crimes against humanity where national courts are unable or unwilling to do so.

Under the treaty that established the ICC, the Security Council has the power to refer country situations to the court. Because Sudan is not a party to the court and is unlikely to refer the Darfur case of its own accord, a Security Council referral is the only way that the ICC can be given the authority to investigate and prosecute crimes committed there.

The current U.S. reluctance to sanction an ICC prosecution of the Darfur criminals is especially odd in light of the U.S. views that were expressed when the ICC treaty was being drafted. At that time, rather than opposing the Security Council's referral of cases to the court, the U.S. supported the court on the condition that all cases were to reach the court via the Security Council.

By giving the Security Council power over the court's docket, the U.S. (with its Security Council veto power) could protect its citizens from prosecution. The present case, in which no U.S. citizens are implicated in the violence, would therefore seem to present an ideal showcase for the U.S.'s preferred approach to international justice.

Justice Now

More importantly, the cost of delaying justice in Sudan is high. As the U.N. commission pointed out in its just-released report, "attacks on villages, killing of civilians, rape, pillaging and forced displacement have continued," even as the U.N. inquiry was being conducted. The commission emphasized, accordingly, that "action must be taken urgently" to put a stop to these crimes.

U.S. officials may not like the ICC. But they should think hard before blocking the Security Council from bringing the Darfur killers to justice in a prompt and efficient way.

Surely it's not worth sacrificing thousands of civilian lives for an ideological position.


Joanne Mariner is a FindLaw columnist and human rights attorney. She has visited Darfur twice in the past year on behalf of Human Rights Watch, documenting rape, murder, "ethnic cleansing" and other atrocities. The views expressed in her column are her own, and do not necessarily reflect those of Human Rights Watch.

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