Doing Something about Darfur?

There has been a lot of anxiety, but little concrete action, from nation-states about the crimes committed in the Darfur region of Sudan. The powerful Security Council, in particular, has been woefully ineffective. While the U.S. Congress adopted a resolution in 2004 declaring the situation a “genocide,” China has played spoiler in the U.N. body, protecting Sudan from more concrete censure.

The one thing the Security Council could agree on was handing the problem off to the fledgling International Criminal Court (ICC). Even the United States, which for a time played arch enemy to the court, declined to veto the 2005 Security Council resolution referring the Darfur situation to the ICC. Given the hostility of the U.S. to the court, this failure to veto the resolution represented a major victory for the institution.

This referral, however, has had little effect on the crisis in Darfur. The long arm of international law has not yet reached far into the region. Although the ICC’s prosecutor has dutifully reported to the Security Council every six months about the progress of his investigation, he has thus far had fairly little to say.

To be fair, both the refusal of Sudanese authorities to allow the prosecutor to investigate in Darfur and the ongoing crisis in the region have made prosecuting potential perpetrators difficult. Nevertheless, there has been a growing sense of frustration with the desultory pace of the ICC’s investigation. The most visible manifestation of this discontent consists of documents requested by the ICC judge assigned to the investigation and submitted by Louise Arbour, the former prosecutor of the Yugoslav Tribunal (and now UN High Commissioner for Human Rights), and Antonio Cassese, the former president of the Yugoslav Tribunal and author of the UN’s report on Darfur. Each of these documents takes issue with the prosecutor’s conclusion that concerns over victim security precluded him from going forward with prosecutions. The prosecutor responded, disputing the conclusions of the Cassese and Arbour briefs and setting out his strategy on the Darfur investigation.

The ICC’s prosecutor finally has something to say beyond vague promises of future action. He announced this week that he plans to present his first case on Darfur to the ICC’s judges within a matter of days. This is an important step for the ICC. Whether the beginning of actual prosecutions for crimes committed in Darfur will help mitigate the human catastrophe occurring there is an open question. Certainly criminal prosecutions, standing alone, can do little in the short term. If they help galvanize political will to address the crisis, however, they may prove a critical step toward reaching the political solution that the inhabitants of Darfur desperately need.

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3 Responses

  1. A few minor points: While Congress did indeed pass the “genocide” resolution in late July 2005, it was merely a follow-up to President Bush’s similar declaration a month and a half earlier. I realize CO is loathe to give the President any credit on almost any matter but Congress’s declaration is certainly of no more significance in this matter than a President’s.

    As to the ICC, this may be semantics but the US did not decline to veto the ICC referral, it abstained from the vote. Since Sudan is not a signatory to the ICC, the only way to get the ICC jurisdiction is by a Security Council vote. Since the costs would be borne by the ICC and not the UN, the US would not be directly involved, hence the abstention. I’d hardly call that a great victory for the ICC.

    I remember laughing about the supposed solemnity of the ICC actions last November when the ICC reported that, yep, there were bad things going on in Sudan and the only thing keeping the ICC from acting was a determination of whether or not Sudan was doing anything on its own about the atrocities. Seriously, they had to study the matter to see what Sudan was doing about it.

    But even after those legal eagles determine what anyone without a law degree could have figured out long ago, how does the prosecution go forward. Since Sudan is not a signatory, how does the ICC bring the perpetrators forward? Can anyone seriously picture a scenario where the ICC/UN unilaterally goes into Sudan for the purpose of initiating an ICC prosecution? It’s too ludicrous to even think about.

    I think this whole ICC investigation is just a colossal waste of time and money undertaken so that international tsk-tsk’ers can prance about The Hague pretending to be doing very important work. It is the appearance of caring without doing anything of substance (including not even going to Darfur during the investigation). Worse, it acts as deterrence to strong action by international players.

    Yeah, really too bad the US isn’t part of this glorified Moot Court program.

  2. I had no intention of slighting the president’s action or, for that matter, of praising Congress’s decision to declare the events in Darfur a “genocide.” I simply wanted to make the point, as your comment underscores, that the US has not been trying to shield Sudan from accountability.

  3. …well I did write it was a “minor point”…