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| March 18, 2005 | ||
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Deadlock over Justice for War Crimes in Darfur By
Lauren Etter |
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The violence and killing in Sudan’s western Darfur region persists as the international community is paralyzed over how to bring an end to the crisis in Darfur and how to bring alleged war criminals to justice.
On Thursday March 17, the United Nations Security Council voted to give a second week-long extension to a U.N. political mission currently in Sudan. The mission is designed to prepare the ground for a package of United Nations measures on Sudan, but a resolution implementing these measures cannot be passed until the Council’s members settle their differences over where war crimes prosecutions should take place.
A report released in January by the U.N.-sponsored International Commission of Inquiry on Darfur found that government forces and allied militia groups were responsible for the widespread killing of civilians, rape, torture and destruction of villages. The Commission recommended that action should “be taken urgently to end these violations” – which it said might amount to crimes against humanity – and strongly endorsed calls for the perpetrators to be brought before the Hague-based International Criminal Court. United Nations Secretary-General Kofi Annan has also said that the International Criminal Court is the “most logical place” to try people suspected of committing war crimes in Darfur. Because Sudan is not a party to the Court, a Security Council referral is needed before investigations and prosecutions can take place. And while twelve of the fifteen Security Council members support a referral, the United States, China and Algeria remain opposed.
The United States in particular has voiced staunch opposition to having Sudanese war criminals brought before the ICC. As a permanent member, the United States has the power to veto any Security Council resolution referring the situation in Darfur to the Court. The Bush administration has campaigned strongly against the International Criminal Court, claiming there are insufficient safeguards to prevent the indictment of U.S. soldiers or government officials for political reasons.
Pierre-Richard Prosper, the US Ambassador-at-Large for War Crimes, said in a news conference in January that the United States does not "want to be party to legitimizing the ICC."
The Darfur conflict broke out in 2003 when rebel groups in the province launched an insurgency against the national government. In response, according to numerous well-documented accounts, the Sudanese government and Arab militias known as “Janjaweed” began a campaign of killing and ethnic cleansing against Darfur’s native African tribes. Despite a ceasefire in 2004, the violence continues with reports of raping, looting, burning, kidnapping and killing.
In a draft Security Council resolution, the United States calls for the perpetrators of these crimes to be brought to justice “through internationally accepted means.” But what exactly these means are remains unclear.
“Internationally accepted means,” according to the United States involves the perpetrators being brought before an expanded version of the already-existing International Criminal Tribunal for Rwanda in Arusha, Tanzania, which was established in 1994 to try those responsible for the Rwandan genocide. Such a tribunal would build on existing ICTR mechanisms, such as office facilities, investigators and prosecutors.
The U.S. position is not surprising. But that doesn’t make it any less controversial.
“This is a no-brainer,” said Richard Dicker, director of the International Justice Program at Human Rights Watch. “The Commission’s report and the Secretary General’s comments both before and after the report are incontrovertible in the clarity of their recommendations.”
The International Criminal Court came into being in 2002 after it achieved the minimum sixty signatures to go into full force. It currently has over 90 signatories. The Court has begun inquiries into possible war crimes committed in the Democratic Republic of Congo and Uganda.
The International Criminal Court is a permanent body, unlike the ad hoc tribunals set up on a temporary basis to try crimes committed in a particular location or conflict, such as the Rwandan genocide. Opponents of ad hoc tribunals say that they cost too much money, take too much time and are vulnerable to non-cooperation and obstruction.
“The reality is that the ICTR is scheduled to close in 2010 and it has a full workload,” said Stefanie Frease of the Coalition for International Justice.
"The ICC was created precisely to address the kind of horrific crimes that have occurred in Darfur,” said Dicker. “It has the advantage of being an up-and-running institution which will limit the delay time for an investigation to get underway.” Plus, according to Dicker, “there’s no spare facility at the ICTR. It’s like trying to stuff three more people into the back set of an already over-crowded car."
Still, the opinion is not unanimous.
Brett Schaefer of the Heritage Foundation says the most sensible option would be to use the current Rwanda tribunal.
The investigation phase of the ICTR is for the most part over, he says, leaving just the trials themselves to be carried out. This, says Schaefer, means that the international community should "capitalize on the existing situation in Arusha," by moving some of the investigators onto Sudanese cases. Plus it would enable justice to be delivered while still preserving the U.S. position against the ICC.
“The cost issue is not the concern,” said Schaefer. “We are talking about trying to bring perpetrators [of war crimes] to justice. Those who are focused on the dime here should be focused on the broader picture. The first step is to stop the killing.”
Myriad proposals to stop the killing are on the table. The United States is pushing for a travel freeze and asset ban against those who violate international laws or threaten stability in Darfur, as well as a ban on military flights in the region. U.S. officials have also suggested that the Security Council impose an embargo on oil exports from Sudan and forbid arms sales to the country, but these steps have been strongly resisted by other Security Council members including China and Russia.
The international response is complicated by the fact that a peace accord has recently been signed to end the long-running civil war between Sudan’s north and south. As part of its package of measures on Sudan, the Security Council is discussing the creation of a 10,000-strong peacekeeping force to monitor this agreement.
In Darfur, the African Union currently has a force of 1,800 peacekeepers on the ground, but its mandate and numbers have proved too restricted to stop the violence.
The failure of international institutions to formulate a decisive response to the situation in Darfur is causing many people to wonder about the role of the UN and international justice today.
“It is one of these amazing instances where the Security Council is just not working as it should,” said Lee Casey, a former Justice Department lawyer for the Reagan and Bush administrations. “Again we have another genocide or another arguable genocide taking place in Africa and the UN isn’t doing squat about it.”
For other observers, referral to the International Criminal Court – though it may not be perfect – offers the best way forward.
“The ICC is hardly a panacea,” said Dicker. “It has no magical powers to compel cooperation with officials in Khartoum” but it “has the advantage of being an up-and-running institution which will limit the delay time for an investigation to get underway.”
As negotiations continue, latest estimates suggest that over 50,000 people may have been killed through violence in Darfur, while disease and malnutrition linked to the fighting may have killed 180,000 more. According to the commission report, there are 1.65 million internally displaced persons in Darfur, and more than 200,000 refugees from Darfur in Chad.
This has some concerned that the attention on accountability is misplaced.
“It is important not to be completely distracted by the accountability issue and to focus on the violence,” said Frease. “There is no indication that there is a connection between determining which accountability mechanism would be used and the prevention of violence.”
Referring to the massacre of over 7,000 men and boys during the Bosnian conflict, Frease added, “Srebrenica happened after [Radko] Mladic and [Radovan] Karadzic had already been indicted. It is important to remain focused on stopping the ongoing violence.”
Related chapters from Crimes of War: What the Public Should Know: Related Links: Report of the International Committee of Inquiry on Darfur (.pdf file) January 25, 2005 Rift Valley Institute
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