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UN: Divisions Over ICC Mark Security Council Meeting On Darfur

For months now, the United States has pushed for international action to end the violence in Sudan's Darfur region, where government-backed Arab militias have been accused of mass killings, rape and other atrocities committed against black Africans. A United Nations report last week urged action on Darfur and called for those accused of war crimes to be put on trial by the International Criminal Court. But rather than boosting international momentum for action on Darfur, the UN report risks delaying it in a protracted diplomatic tussle. Ironically, that's because the United States opposes sending the Darfur case to the ICC -- for fear of legitimizing the new court, which it has refused to condone.

Prague, 8 February 2005 (RFE/RL) -- The United Nations Security Council was expected to hold an open meeting today on the Darfur conflict, where an estimated 70,000 people have been killed and 2 million displaced over the past two years.

Sudanese Vice President Ali Osman Mohammed Taha and rebel leader John Garang are set to address the meeting, which comes as UN Secretary-General Kofi Annan warns of ongoing violence in western Sudan.

RFE/RL correspondent Robert McMahon, who is at the UN, said this in the run-up to the gathering: "[Today's] meeting in the council will really provide a chance to see which direction it's prepared to go in -- whether the council is prepared to act in an immediate manner to try to bring an end to the current violence and also to try to send a signal that people involved in past crimes will not be treated with impunity but in fact will face serious charges."

But face charges where?

A UN report in late January blamed Sudan-backed Arab militiamen, or janjawid, for most of the atrocities but also pinned some blame on the rebels.
Rights groups say the diplomatic delays risk costing more and more lives as the Darfur tragedy continues.

Significantly, the report called for suspects in the atrocities to be put on trial at the International Criminal Court (ICC).

But that call has thrown action on Darfur into a diplomatic tangle at the Security Council, whose decision is needed to refer the case to the ICC.

Washington has strongly opposed the court.

U.S. President George W. Bush explained his stance in September 2002: "I strongly reject the ICC. I am not going to accept an ICC. I am not going to put ourselves in the position where our soldiers and diplomats get hauled into a court over which we have got...the prosecutors whom we don't know, the judges. We are not going to allow ourselves to do that."

Pierre-Richard Prosper -- the U.S. ambassador-at-large for war crimes -- was widely quoted recently as saying Washington does not want to legitimize the ICC by giving it the high-profile Darfur case.

U.S. Secretary of State Condoleezza Rice, speaking on 4 February at the start of her tour of Europe and the Middle East, said those responsible for Darfur war crimes need to be punished, but that the U.S. position on the ICC "has not changed."

Rather than sending the case to the ICC, Washington is now urging the creation of an ad hoc war crimes tribunal for Darfur.

U.S. State Department spokesman Richard Boucher said the ad hoc court could be modeled after previous special tribunals on the former Yugoslavia and Rwanda.

"There are a number of advantages of doing it that way," Boucher said. "I mentioned it would involve the Africans, the African Union, in playing a continuing role for accountability, as they have played in trying to stop the crisis in Darfur to begin with. It also has the practical advantage of building on the existing infrastructure of the UN International Criminal
Tribunal for Rwanda."

Complicating Security Council negotiations on Darfur, meanwhile, is the position of two other permanent members, China and Russia. Both have economic interests in avoiding sanctions on Sudan, and neither is party to the ICC.

Rights groups say the diplomatic delays risk costing more and more lives as the Darfur tragedy continues.

In an apparent bid to ease the stalemate, Harvard law professor Jack Goldsmith, a former Bush administration official, recently urged a more moderate American stance on the ICC, saying that it was "too late to kill" the fledgling court.

The ICC, launched in July 2002, is a so-called court of last resort. As such, it only takes on cases of war crimes, genocide, or crimes against humanity that national courts fail to address.

In mid-2004, the ICC launched its first two investigations, involving cases in Uganda and Congo. Yves Sorokobi, a spokesman for the ICC chief prosecutor, told RFE/RL that the court would also be prepared to take on the Darfur case.

"Yes, the court would be very interested in considering the referral, which would be treated as any other referral," Sorokobi said. "Again, it would have to be analyzed and the prosecutor would have to determine on the basis of this analysis if there is a reasonable basis to proceed with an investigation. And if he does that, I can assure you that the office of the prosecutor would not open an investigation if we are not certain that, first, we have the legal basis to do so, and second, that we have what it takes to conduct the investigation."

That last point is worth considering.

The recent UN report handed a confidential list of 51 names of Sudanese suspects to the UN secretary-general and recommended they be referred to the ICC.

But how the ICC would ever obtain custody of them remains unclear.

Taha -- the Khartoum official who was expected to appear before the Security Council today -- said on 5 February that no Sudanese would be prosecuted outside the country because "Sudan has fair legal organs."