Darfur and the International Criminal Court
Eric Reeves
April 29, 2005
(Eric Reeves, professor of English language and literature at
Smith College, has written extensively on Sudan for the last six
years.)
On March 31, 2005, the United Nations issued another response
to the vast crisis in the Darfur region of far western Sudan,
referring various conspicuous violations of international law to the
International Criminal Court. Though there have been five previous
UN Security Council resolutions bearing on Darfur, the response
contained within Resolution 1593 has gained far and away the most
public notice because it seemed, at first glance, to have teeth.
Major human rights organizations welcomed the possibility that
perpetrators of the mass killings and displacement plaguing the
Sudanese region since February 2003 could face trial and eventual
punishment. Germany and other Western governments were gratified
that the United States, long hostile to the Court, had stopped its
obstruction of such an international justice effort. Given the
extremely limited relevance of Resolution 1593 to the task of ending
the destruction and human suffering in Darfur, however, the initial
sighs of relief at the resolution's passage are grimly ironic.
The ongoing disaster in western Sudan deserves the name of
genocide. The concerted military campaigns of the Khartoum
government and its janjaweed militia allies have clearly included
several of the acts stipulated in the 1948 UN Convention on the
Prevention and Punishment of the Crimes of Genocide, in particular
“killing members of [ethnic or racial] groups [as such]” and
“deliberately inflicting on the groups conditions of life calculated
to bring about their physical destruction in whole or in part.” Acts
of the latter sort, exemplified in the case of Darfur by such
tactics as razing of villages, burning of crops and looting of
livestock, constitute what might be described as “genocide by
attrition.”
According to a recent study by the Coalition for
International Justice and independent research, state-directed
violence and the resulting public health crises have claimed as many
as 400,000 lives in Darfur since February 2003, overwhelmingly among
the non-Arab or “African” tribal populations of the region.
Available data suggest that an additional 2.5 million people have
been displaced by the conflict, either within Darfur or as refugees
to Chad. This displacement continues at an alarming rate. Three
million people -- approximately half of Darfur's population -- are
now “conflict-affected” and Jan Egeland, the UN's chief aid
official, has indicated this number may grow to 4 million during the
impending June-September rainy season. Famine conditions are already
evident in parts of rural Darfur; food shortages and a collapsed
agricultural economy (including spiraling food price inflation)
ensure that the dying is far from done. The final death toll from
this engineered catastrophe may exceed that of Rwanda's genocide.
The National Islamic Front regime in Khartoum, along with the
notorious janjaweed, bears overwhelming responsibility for the
current dimensions of the crisis. Indeed, Khartoum's strongmen long
ago settled upon a strategy of genocide by attrition in responding
to the Darfuri insurgency movements that emerged in February 2003.
Rather than address long-time grievances over political and economic
marginalization, a decayed judiciary and growing inter-ethnic
violence, Khartoum sought to deal with the insurgency militarily.
When direct military measures failed badly, the regime switched to a
policy of destroying the civilian population base for the
insurgents, chiefly the Fur, Masalit and Zaghawa tribal groups.
To date, the international response to Darfur's crisis has
been mainly to provide humanitarian relief. Even so, humanitarian
aid is presently only about half what is required -- and needs will
go up dramatically during the rainy season. Moreover, deteriorating
security throughout Darfur is attenuating both the reach and the
capacity of aid efforts. The international response to this
insecurity has been greatly inadequate. While the African Union (AU)
has deployed about 2,300 personnel to monitor a largely non-existent
ceasefire in the region, it has been unable to secure a mandate to
protect either humanitarian aid workers or civilians. The force on
the ground has attempted to expand this mandate, but is far too
small and poorly equipped to address the manifold security needs of
a region the size of France. This fact is obvious to all
international actors, though for political reasons few will speak of
more than augmenting the AU force -- a process that will take
additional months.
PRODUCING AMBIGUITY WHERE THERE IS NONE
Debates within and outside the UN over the advisability of
referring crimes committed in Darfur to the International Criminal
Court (ICC) occurred within this larger context of humanitarian
emergency. The investigative basis for this referral is a report
submitted to the UN Secretary-General on January 25, 2005 by an
International Commission of Inquiry (COI), which found evidence of
numerous and massive “crimes against humanity,” thus clearly
reaching the threshold for sending the case to the ICC prosecutor in
The Hague. The commissioners wrote that those crimes “may be no less
serious and heinous than genocide,” but (for the present) cleared
Khartoum of having committed “genocide,” on the grounds that the
regime's “specific intent to annihilate” a particular ethnic or
tribal group could not be established. Thus the report circumvented
the UN's obligation to act under Article 1 of the 1948 Genocide
Convention.
The final report of the COI, appointed by the UN Secretariat,
was not only clearly politicized, but also quite poorly reasoned. It
failed to distinguish intelligibly between “motive” and “intent” in
assessing evidence of genocide. After correctly stating that
“special intent must not be confused with motive, namely the
particular reason that may induce a person to engage in criminal
conduct,” the report goes on to say that “genocidal intent” is
lacking because regime forces and militias seem to have attacked and
depopulated Darfur villages “primarily for purposes of
counter-insurgency warfare.” The purpose, or motive, of the crimes
is irrelevant to the determination of intent. The COI report raised
but failed to explore the issue of Khartoum's “complicity in
genocide,” a category of crime also covered by the 1948 convention.
This shortcoming is especially troubling given what the COI
establishes as Khartoum's clear responsibility for the actions of
the janjaweed. Additionally, the report offered misleading and
inaccurate generalizations about the realities of human displacement
in Darfur and Chad, suggesting that forced movement of displaced
persons into the camps was somehow a mercifully planned rescue from
violent destruction in rural areas.
Perhaps most consequentially, the COI report failed to
conduct forensic investigations at some of the most infamous sites
of ethnically targeted mass executions, including Wadi Salih in the
province of South Darfur, location of a widely reported massacre of
Fur men and boys. Both Amnesty International and Human Rights Watch
focused in particular on events at Wadi Salih in 2004. Here it is
important to remember that the Genocide Convention twice stipulates
that acts of genocide may have as their intent the destruction of a
protected group “in whole or in part.” Not all genocidal acts must
be wholesale, though such has clearly been the intent in countless
attacks throughout the Darfur region. By failing to consider the
evidence of ethnically targeted human destruction in the austere
context of the Genocide Convention, the COI has produced ambiguity
where there is none and has conveyed the sense that something other
than the ultimate human crime is being committed.
Even so, the COI was explicit in recommending UN Security
Council referral to the ICC for “crimes against humanity,” a phrase
that frequently punctuates the report's conclusions. The report also
refers explicitly to “senior government officials” as responsible
for these crimes. This reference set the stage for a highly
consequential UN debate and eventual passage of Resolution 1593 on
March 31. But, in the end, the debate and the referral were
significant not so much for Darfur as for the politics surrounding
the ICC.
STAKEHOLDERS IN THE DEBATE
The United States, as represented by the Bush administration,
was caught in a bind by the COI's recommendation of an ICC referral.
Although both President George W. Bush and former Secretary of State
Colin Powell had formally declared that the realities in Darfur
constituted genocide, the administration had long and strenuously
opposed the ICC out of fear that US officials or soldiers might
someday face prosecution for bad acts pursuant to overseas
interventions. Bush's pending nominee for ambassador to the UN, John
Bolton, is one of several hawks who bitterly opposed President Bill
Clinton's grudging signature upon the 1998 Rome Statute establishing
the Court and backed a bill in Congress that would have authorized
use of force to free any US citizen who might have wound up in
custody in The Hague. Having finally “unsigned” the Rome Statute in
April 2002 with a three-sentence letter from Bolton to Annan, the
Bush administration was now loath to do anything that might
legitimize the ICC.
Their poorly conceived alternative for Darfur was an ad hoc
tribunal, perhaps to be held in Arusha, Tanzania. Washington found
no significant support for this proposal. In the end, the US
abstained from the 11-0 Security Council vote approving the ICC
referral -- despite a clause in Resolution 1593 exempting “personnel
from a contributing state outside Sudan which is not a party to the
Rome Statute” from the jurisdiction of the Court's Darfur
investigations.
At the same time, a number of human rights organizations had
sought with equal fervor to create precisely the legitimacy for the
ICC that the US sought to avoid, and wasted little time pouring very
significant advocacy efforts into supporting the referral. Two
criticisms of these advocacy efforts seem warranted in retrospect.
First, they too clearly came at the expense -- at a critical moment
in international debate -- of demands for greater efforts at
civilian protection. So exclusively was the focus on achieving an
ICC referral that the morally more immediate and compelling need for
humanitarian intervention and civilian protection received only an
advocacy nod. Second, in arguing for an ICC referral, human rights
groups made claims made for its deterrent effect that became
increasingly tendentious, even disingenuous. Claims by Human Rights
Watch that an ICC referral offered the people of Darfur “real hope
of protection” had no basis in fact or logic, and would soon be
undermined by events.
The other major stakeholders in the debate over an ICC
referral were the senior members of the National Islamic Front (NIF)
regime in Khartoum, who came under what is effectively an indictment
with the report of the COI. Fifty-one names were referred under seal
to the chief prosecutor at the ICC, Luis Moreno-Ocampo. While the
“list of 51” remains under UN seal, it is clear from the COI report
who is implicated by virtue of clearly delineated reporting
hierarchies and chains of command and authority. Establishing these
hierarchies and chains, with explicit confirmation from Khartoum, is
the major positive achievement of the UN investigative commission.
According to a January 29 Los Angeles Times report, the COI met
after its report was completed, but before it was released, because
some commissioners wanted to name the names of those on the “list of
51” who are involved in talks with rebels in Darfur and the south of
Sudan.
Certainly on the list, then, is First Vice President Ali
Osman Taha, presently the most powerful member of the NIF. It is
widely known that Taha has taken primary responsibility for
Khartoum's Darfur policy, even as he was chief NIF negotiator (and
concession-maker) in the peace talks with the southern Sudan
People's Liberation Movement that concluded in Nairobi, Kenya on
January 9. Interior Minister Abd al-Rahim Muhammad Hussein is also
surely on the list, as he is, among other things, the primary
architect of forced removals of internally displaced persons from
camps of refuge in Darfur. So, too, is the director of security and
intelligence within the NIF regime, Maj. Gen. Salih Gosh. Given the
prominence of these men in regime policy generally, any assessment
of the “deterrent” effects of an ICC referral must take account of
their likely actions and motives.
“LIST OF 51”
Not surprisingly, the response of the NIF to passage of
Resolution 1593 was immediate and categorical rejection. Not only
did senior regime officials denounce the measure, but so did a great
many of those politically beholden to the NIF regime, including Musa
Hilal, who has been identified repeatedly as the most notorious of
the janjaweed leaders and is also assumed to be on the “list of 51.”
Hilal, who denies having committed crimes, said that in any case: “I
do not accept that I be prosecuted outside of Sudan.” For his part,
President Omar Bashir took an oath “thrice in the name of Almighty
Allah that I shall never hand any Sudanese national to a foreign
court.” Information Minister Abd al-Basit Sabdarat promised “an
extensive diplomatic campaign” explaining Khartoum's refusal to
cooperate with the ICC, while Sudan's Ambassador to the UN al-Fatih
Erwa called the Court “a tool to exercise the culture of superiority
and impose the culture of superiority.” Sudan's Arab neighbors,
Egypt and Libya, have publicly supported the line from Khartoum that
an international justice effort would wrongly violate Sudan's
national sovereignty.
Far from providing a deterrent effect, the ICC referral poses
readily discernible dangers to both civilians and humanitarian aid
workers. How could it be otherwise when those effectively indicted,
and thus faced with extradition, still control Sudan? Who could
imagine that senior members of the NIF would ever subject themselves
to the authority of international justice? To be sure, the answers
to these questions do not compromise the appropriateness of an ICC
referral: under the circumstances, there was no other option that
offered the prospect of international justice in a timely fashion.
But the justice represented by conviction is one thing; extradition
of those convicted and subsequent punishment are another. Deterrence
in Darfur's current environment is quite another matter altogether.
Knowledgeable Darfuris in exile and regional intelligence
sources speak urgently of the strong sense within the humanitarian
aid community that, in the event of an ICC referral, the janjaweed
will be encouraged by Khartoum to escalate attacks on foreigners,
especially aid workers. These concerns were partly confirmed in an
April 25 Washington Post dispatch from the Nyala region.
Even before the UN Security Council vote, the distinguished
Refugees International had made clear that Khartoum officials
regarded the prospect of an ICC referral with a “combination of
annoyance and arrogance.” The group cited a comment by Foreign
Minister Mustafa Osman Ismail that a referral would pose “a direct
threat to the foreign presence.… Darfur may become another Iraq in
terms of arrests and abductions.” An official of Khartoum's
paramilitary Popular Defense Forces warned Refugees International of
“an explosion” if persons referred to the ICC were punished in
criminal proceedings.
CALLOUS CALCULATIONS
The “explosion” may have begun. In his April report to the
Security Council, Annan noted a troubling increase in attacks on aid
workers over the preceding month and offered an ominous explanation:
“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.”
Annan knows full well the names on the “list of 51,” and thus
is clearly pointing to senior genocidaires in the NIF regime. While
his statement alerts Ali Osman Taha, Abd al-Rahim Hussein, Salih
Gosh and others to their potential vulnerability were they ever to
be extradited to The Hague, such extradition is of course impossible
while these men hold the reins of power. Indeed, the most likely
consequence of the ICC referral is to encourage a sense that there
is nothing for the NIF to lose in pursuing present policies in
Darfur. Given the nature and extent of the de facto indictments
rendered by the COI report, this calculation is likely accurate.
That likelihood would account for the brazen attack on Khor
Abeche, traditional capital of the Birgid people, northeast of
Nyala. On April 7, a week after the passage of Resolution 1593, and
after several days of intense international negotiations in the
region to avoid violent assault, the janjaweed “rampaged through the
village [of Khor Abeche], killing, burning and destroying everything
in their paths and leaving in their wake total destruction.” This
language comes from an extraordinary Joint Statement by the AU
Mission in Sudan and the UN Mission in Sudan, issued on April 7,
which takes the unprecedented step of naming the militia
commander.
But most significant about the attack on Khor Abeche was the
futile effort to prevent it. Both the AU and the UN had been
negotiating for several days with the wali (governor) of
South Darfur, Khartoum's senior functionary in this part of Darfur.
Timely deployment of AU observers might have forestalled the clearly
impending attack. Khartoum's representative refused, certainly at
the regime's behest, leading to an assault characterized by the AU
and UN as “savage,” “premeditated” and ultimately a function of
“deliberate official procrastination.”
This is unusually frank language coming from either the UN or
the AU; coming in a joint public statement, it bespeaks the utter
frustration with Khartoum's intransigent refusal to halt attacks by
the janjaweed. These attacks are the most consequential source of
insecurity in Darfur, and have produced the staggering numbers of
displaced and conflict-affected people. Janjaweed-created insecurity
prevents people from returning to their lands and resuming
agriculturally productive lives. The threat of janjaweed predations
also defines the lives of more than 2 million internally displaced
persons, presently seeking to eke out existence in the squalid and
dangerous camps that have sprung up throughout the region. According
to Human Rights Watch and press reports, women and girls leaving the
camps face rape at the hands of the janjaweed, many of whom have
been recycled into the ranks of Khartoum's “police” and security
forces. Men and boys leaving the camps risk execution.
These terrible realities show no sign of abating or being
halted by international humanitarian intervention. Indeed, despite
Deputy Secretary of State Robert Zoellick's early April trip to
Sudan, there is good reason to believe that the US and its European
allies are content with an all too measured response to the ongoing
genocidal destruction. The AU announced on April 29 that it will
expand its force of monitors to 7,700 by September, but the force's
mandate will not be strengthened. Though NATO (and perhaps the
European Union) appears ready to increase AU logistical capacity in
the medium term, there is no evidence of urgency appropriate to the
emergency. Indeed, Zoellick did a good deal to diminish a sense of
urgency by refusing to reiterate Powell's previous determination of
genocide and offering a preposterously low global assessment of
mortality (60,000 to 160,000) for the conflict. None of this is lost
on the NIF regime.
A previous UN response to the Darfur disaster, Resolution
1556 passed on July 30, 2004, “demanded” that Khartoum disarm the
janjaweed and bring its leaders to justice. More than nine months
later, Khartoum has done nothing at all to comply with this singular
UN “demand.” If we are to understand what the ICC referral contained
in UN Security Council Resolution 1593 means -- and does not mean --
we can do no better than reflect on this unmistakable impotence, now
so long in evidence on the part of the UN and its member states. The
canny survivalists in Khartoum have certainly calculated that the
international community will be no more committed to Resolution 1593
than to Resolution 1556. They will assume that those with the power
to demand compliance will be no more willing to bring the “list of
51” to justice than to see that these same brutal men disarm their
primary instrument of genocidal destruction. In such a callous
judgment, history is on their side.
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