Global Policy Forum

The Right Court to Judge Darfur Atrocities


By Cesare P. R. Romano *

News and Observer
February 3, 2005

This week's report by the International Commission of Inquiry on Darfur should finally lead to the end of ongoing atrocities in Sudan. But it most likely won't. The commission concluded that the Sudan government and the Janjaweed militia committed serious violations of international human rights and humanitarian law that amount to crimes under international law, namely war crimes and crimes against humanity. It also concluded that while the Sudanese government did not pursue a policy of genocide, in some instances individuals, including government officials, might have committed acts with genocidal intent.

At the very minimum, the report will pressure the international community and the U.N. Security Council to get tough with Sudan. Sanctions might be adopted to try to prevent further crimes. But unless something is done about the crimes already committed, you can add Darfur to the long list of unpunished international crimes.

It's not as if the commission doesn't have any idea who is behind these atrocities. In addition to its report, the commission handed the secretary-general a sealed file containing the names of 51 individuals, including Sudanese government officials, members of militia forces, members of rebel groups and some foreign army officers, against whom evidence, both testimonial and documentary, has been collected. Will they ever be prosecuted? Not likely.

The reason is quite simple. The commission sensibly recommends that the Security Council refer the matter to the International Criminal Court (ICC) for investigation and prosecution. It lists several reasons why this would be the best option, including the fact that by referring the matter to a standing body, investigation and prosecution would be far more expeditious and less expensive.

Yet, international politics will most likely prevent the ICC's involvement. True, one of its staunchest opponents, the United States, might support such a move because it would help our new secretary of state mend fences with our allies in Europe. It also would not subject the United States and its citizens to the ICC's jurisdiction, which is the main U.S. beef with the ICC. But what would Russia gain from seeing the ICC get up steam? The same is true for China, a country with interests and increasing influence in Sudan. The likely result, again, is endless discussions and inaction, or reprimands and sanctions that do not address the victims' call for justice.

One commission-suggested alternative to the ICC is prosecution by national criminal courts under the principle of universal jurisdiction. Actually, that is the only alternative short of creating another huge, unwieldy body like the International Criminal Tribunals for the former Yugoslavia or Rwanda (by the time these bodies have completed their task, they will have cost more than a billion dollars and been around for a quarter century) or adding more cases to these already overburdened tribunals.

While it is not hard to imagine that several countries might be willing to step in and use this unambiguous occasion to gain international praise, what they can do in practice is limited. Because of several politically embarrassing high-profile cases in the past, such as the attempted or threatened prosecutions of Ariel Sharon, Henry Kissinger and Augusto Pinochet, the trend is toward restricting the exercise of universal criminal jurisdiction. Such a weakened system could hardly mete out the criminal punishment required in this case.

Also, given the fact that the accused are normally required to be present for trial, chances are that the Sudanese identified in the sealed file will know better than to travel abroad for a very long time. There are also the questions of whether the United Nations is willing to share the evidence collected with national authorities who want to go ahead with prosecution. Or will it defer to the sovereignty of Sudan and allow considerations of diplomacy and polity to prevail once again?

The Security Council and the veto-yielding states must make sure the ICC acts on these atrocities, lest Darfur becomes yet another tragedy without justice.

About the Author: Cesare P.R. Romano is a visiting professor at Duke Law School and an associate of the Center on International Cooperation at New York University.

More Information on International Justice
More Information on Universal Jurisdiction
More Information on the International Criminal Court
More Information on International Criminal Tribunals and Special Courts
More Information on Sudan


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