The role being played by the international community in connection with restoration of peace in the Darfur region of Western Sudan has attracted concerns all over the world. Virtually, no single activity embarked upon by the United Nations (UN), which is intended to contribute to the end of the crisis prevailing in Darfur, has been able to escape comment from international lawyers and academic commentators. Perhaps it is fair to say that any commendation or condemnation directed at the UN for its response to the crisis is justifiable.
The humanitarian crisis in Darfur began in 2003, and since mid 2004, the crisis has reached such a height that it is almost beyond description. The crisis is the result of an armed conflict between the Sudanese government and two main rebel groups called the Sudanese Liberation Army (SLA) and the Justice Equality Movement (JEM). The Sudanese government sponsored a group of Arab militias called Janjaweed, which was entrusted with the duty to assist the Sudanese troops in targeting and attacking civilians perceived to be helping and harbouring the rebels. Most of the victims of the crimes committed in Darfur are ethnic black Africans and the rebel groups have been fighting against the Sudanese government over its alleged policies of discrimination, marginalization and underdevelopment of their southern region.[1]
Needless to say, the situation in Darfur is a pathetic one. The UN, and for that matter the international community, is currently striving to restore peace in Darfur by adopting measures to bring the perpetrators of the crimes committed in the area to justice and to obtain reparation for the victims. However, before examining such measures, it is fair to hurl criticism at the UN for its initial inaction. There is no doubt that the crisis could have been prevented at least from reaching its present level had the UN responded promptly to the conflict between the Sudanese government and the rebels. As the executive director of the ‘Minority Rights Group’ (MRG) puts it, “this level of crisis, the killings, rape and displacement could have been foreseen and avoided ... Darfur would just not be in this situation had the UN systems got its act together after Rwanda: their action was too little too late."[2]
The Darfur region has about five million people, most of whom are ethnic black Africans with some Arabs. Whereas the militias fighting on behalf of the Sudanese government employed systematic crimes of ethnic cleansing and slavery to force the southern native black Africans to abandon their way of life, the rebel groups mainly targeted government institutions such as police stations and an airport. They also attacked military aircrafts and killed scores of soldiers. More than thousands of civilians have killed in Darfur since 2003 particularly by the Janjaweed. Another inhumane act committed by the Janjaweed was that it members blocked the flow of food and humanitarian aid meant for the people who had been displaced by the conflict. Such and act was intended to flee the area of the conflict. The militias also indiscriminately committed crimes and human rights abuses, which included rapes, massacres and forced evictions and destruction of water sources. In fact the crisis was such that it has been described by the UN 'as the world's worst humanitarian crisis'[3] Even before the Commission of Inquiry was establish to investigate the situation, a two UN human rights fact-finding reports revealed that many of the acts committed in Darfur might constitute war crimes and/or crimes against humanity and made recommendations to alleviate the suffering of the displaced, to redress the wrongs committed, and to bring the perpetrators to justice[4]
As a starting point of its response to the crisis, which clearly satisfies the requirements of an internal armed conflict under Article 3 of the Geneva Conventions, the UN Security Council adopted a resolution in July 2004 (Security Council Resolution 1556 (2004)) under Chapter VII of the UN Charter, which approved the peace accord signed by the Sudanese government and the rebel groups to end the war. This resolution also required the Sudanese government to disarm its sponsored group, the Janjaweed militia, within thirty days and to punish its members responsible for committing atrocities and human abuses. The resolution contained a threat to impose economic sanctions should Sudan fail to comply.[5] A subsequent resolution (SC Resolution 1564 (2004)) adopted on the crisis in September 2004, threatened to impose additional sanctions on Sudan should it continue to disregard the first resolution.[6] This resolution also requested the UN Secretary-General to set up a Commission[7] of enquiry to investigate “reports of violation of international humanitarian law and human rights law in Darfur by all parties”. It is the recommendations contained in the Commission’s report and referral of the situation in Darfur to the International Criminal Court (ICC) which this paper examines in detail.
The Commission set up by the Secretary-General submitted its report (Report of the International Commission of Inquiry on Darfur to the Secretary-General) to the Secretary-General on 25 January 2005. It must be mentioned that upon the request contained in the Security Council Resolution 1564, the Commission was also entrusted to determine whether or not acts of genocide had occurred. According to Article 5 of the Rome Statute, which established the ICC, the ICC has jurisdiction in accordance with the Statute with respect to the crime of genocide, the crimes against humanity, war crimes and the crime of aggression. With regard to the meaning of genocide, Article 6 of the Statute provides the following:
For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.
The Commission found that the Sudanese government has not pursued a policy of genocide. It is clear from the report that the actus reus of genocide, that is the killing, or causing serious bodily or mental harm, or deliberately inflicting conditions of life likely to bring about physical destruction were found to have occurred. There was also the existence of a protected group being targeted by the authors of criminal conduct. What appeared to be missing, according to the report, was the element of genocidal intent. The report further states:
Generally speaking the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds. Rather, it would seem that those who planned and organized attacks on villages pursued the intent to drive the victims from their homes, primarily for purposes of counter-insurgency warfare.
The commission, however, found that international offenses such as the crimes against humanity and war crimes have been committed in Darfur and that such crimes are no less serious and heinous than genocide. According to the report, there are individual perpetrators who are possibly responsible for the crimes committed in the region. They include officials of the Sudanese government, members of militia forces, members of rebel groups, and certain foreign army officers acting in their personal capacity. The report also found that some government officials, as well as members of militia forces, are also responsible for joint criminal enterprise to commit international crimes. The Commission emphasized in the report that it “makes an assessment of likely suspects, rather than a final judgment as to criminal guilt. The Commission’s conclusion thus runs contrarily to that of the United States’ Congress, which unanimously described the Darfur crisis as ‘genocide’ in July 2004.[8]
The Commission emphasized the need to do justice by referring to the gravity of the crimes committed against the innocent civilians in Darfur. The report advises that those responsible for the crisis must be brought to justice, and measures must also be initiated to bring relief and redress to the victims ‘to complete the process of accountability. Accordingly, the Commission called on the Security Council to immediately refer the Darfur situation to the International Criminal Court (ICC), pursuant to Article 13 of the ICC Statute.[9] The Commission calls upon the Security Council to immediately refer the Darfur situation to the International Criminal Court[10], Pursuant to Article 13(b) of the ICC Statute. The reason for the Commission’s recommendation is that the Darfur situation constitutes a threat to international peace and security. According to the Commission, serious violations of international human rights law and humanitarian law by all parties are continuing. The belief entertained by the Commission is that the prosecution by the ICC of the persons allegedly responsible for the ‘most serious’ crimes in Darfur would contribute to the restoration of peace in the region.
Perpetrators of violations of international humanitarian law and human rights law can be tried by a national court or an international court such as the ICC. The ICC is a court of last resort. This means that if a case is investigated or prosecuted by a national judicial system it will not act unless the national judicial system cannot be relied upon for genuine or fair trial. The Commission has proposed to the Security Council to refer the Darfur situation to the ICC and not to a national court. The Commission states the reason why it believes that a Sudanese national court is not an appropriate court to try the alleged offenders:
…the very nature of most international crimes implies, as a general rule, that they are committed by State officials or with their complicity; often their prosecution is therefore better left to other mechanisms. Considering the nature of the crimes committed in Darfur and the shortcomings of the Sudanese criminal justice system, which have led to effective impunity for the alleged perpetrators, the Commission is of the opinion that the Sudanese courts are unable and unwilling to prosecute and try the alleged offenders. Other mechanisms are needed to do justice. [11]
The Commission also entertains the view that the ICC is the court to be resorted to for a number of reasons. First, the Commission contends that the ICC was established with an eye to crimes likely to threaten peace and security. According to the Commission, the investigation and prosecution of crimes perpetrated in Darfur would have an impact on peace and security. The Commission further contends that, it would be conducive, or contribute to, peace and stability in Darfur, by removing serious obstacles to national reconciliation and the restoration of peaceful relations. Although it will be unfair to disrespect the views of the Commission, it has to be said that the ICC cannot be honestly described as the only appropriate court or, as the Commission put, ‘the only credible way’ of bringing the alleged perpetrators of the crimes committed in Darfur to justice. In fact, there will not be any need to take a case to the ICC if a national court undertakes to investigate and prosecute perpetrators of violations of humanitarian law and human rights law. The Commission’s assertion implies that only the ICC can be relied upon for the fair trial of persons accused of violating humanitarian law and/or human rights law. However, as the world witnessed recently, the former president of Iraq, the late Sadam Hussein, was successfully tried by an Iraqi national court for similar offences. The fact that the ICC “was established with its eye to crimes likely to threaten peace and security” does not also guarantee that resorting to it for the trial of the alleged “Darfur offenders” will contribute to peace and security in Darfur. One would have rather loved to hear nothing more than that the ICC should be resorted to because the Sudanese government is unable or unwilling to act.
Another of the reasons given by the Commission for its assertion that the ICC is the only credible way of bringing the alleged offenders to justice is that the ICC could be activated immediately without any delay – which would be the case if one to establish ad hoc tribunals or so called mixed or internationalised courts. The Commission’s claim is unfounded because although the Security Council referred the Darfur situation to the ICC on March 31 2005 the alleged offenders are yet to be brought to justice.[12] To date, all that is known is that the ICC on 1 May 2007 issued a warrant of arrest for the Minister of State for Humanitarian Affairs in the present Government of the Sudan, Mr Ahmad Muhammad Harun.[13] Besides, the ICC is a newly established court, and therefore whether it is capable of trying a case without delay remains to be seen.
Prior to the Commission’s report, it was hoped that a special tribunal could be set up by the UN Security Council for the trial of the perpetrators of the crimes committed in Darfur, as was the case in countries such as Rwanda for similar crimes. In fact, having a special tribunal to try the alleged perpetrators would have meant that the international community considered the Darfur situation as a special issue which deserves a special attention. However, the Commission advises against other mechanisms for bringing the alleged perpetrators to justice. The reason given by the Commission is that other mechanisms, such as ad hoc tribunals are very expensive and ‘slow in prosecution and punishment of indicted persons.[14] One would have found it reasonable to agree with the Commission if it had argued that since there exists now an international criminal court there is no need for a new mechanism to be put in place to secure the prosecution and punishment of the alleged offenders. As said above, the ICC, being a new court, has no relevant decisions which can be cited in support of an assertion that proceedings in the court will suffer no delay. Clearly, it is the circumstances of a given case that determines how long proceedings will last in court.
The ICC prosecutor took office on 13 June 2003 and since then there have been three self-referrals. Uganda referred to the prosecutor on 29 January 2004, The Democratic Republic of Congo on 19 April 2004 and the Central African Republic on 7 January 2005. Clearly, the rationale for all these self-referrals was to get the prosecutor to conduct investigations into crimes alleged to have been perpetrated by rebels fighting against central authorities. Much as this may be seen as attesting to the fact that a new mechanism for the trial of perpetrators of international crimes has emerged, it is difficult to pinpoint any fruit that these self-referrals to the ICC have yielded. As regards the Darfur situation, the prosecutor had, until a warrant was issued for the arrest of the alleged perpetrators of the crimes in question, reported more than two times to the Security Council, pursuant to resolution 1593 (2005). Given that the Sudan has not yet ratified the Rome Statute, the arrest and trial of the alleged perpetrators of the crime are bound to encounter resistance. Not long after the referral of the case to the ICC, the Sudanese authorities made it clear that if the ICC wanted to carry out observation task, in connection with the Sudanese judicial authorities in order to feel relieved and certain, the Sudanese government had no problem or objection. However, said the Sudanese authorities, if the ICC wanted to begin any procedures to try Sudanese citizens, ‘this is unacceptable.[15]
What Articles 12(3) and 87(5) of the Rome Statute imply is that states that are not party to the treaty are not under obligation to co-operate with the ICC. The treaty will only be binding upon them if they have signed an agreement to co-operate with the court.[16] Apart from not being a state party, the Sudan has not, by declaration lodged with the ICC’s Registrar, accepted the exercise of jurisdiction by the court with regard to the crimes committed in Darfur. Thus it is the Security Council, acting under Chapter VII of the UN Charter, which has triggered the ICC’s jurisdiction by a referral to the court’s prosecutor, pursuant to Article 13 (b) of the Rome Statute. How then, could the ICC be described as the only credible way of bringing the ‘Darfur perpetrators’ to justice? To say the least, the picture painted about the ICC by the Commission is regrettable. It is as if the ICC, which has no jurisdiction over certain categories of international crimes[17] has no shortcomings of its own. It is difficult to imagine how the ICC, which is meant to rely on state co-operation, can function efficiently without such co-operation.
The Security Council has kept itself busy with deliberations on the Darfur situation even after referring the case to the ICC’s prosecutor. Obviously, this explains the Council’s determination to help restore peace in Darfur as soon as possible. Another possible reason is that it is trying to atone for its initial inaction, which caused it much criticism. However, the criticism will not go away in as much as there are still reservations about the fairness and objectivity of the ICC. It is the Security Council’s way of handling the situation that has brought the fairness and objectivity of the Court into question. The case has been referred to the ICC, a judicial body, yet the Security Council cannot stop meddling in the case. The Council’s resolution 1672 (2006), has placed member states under obligation to adopt sanctions against a number of Sudanese nationals involved in the Darfur conflict. The sanctions include freezing of assets abroad and prevention of international travel. It has been argued that the legitimacy of the ICC would not be sustained on the basis of occasional referrals based on political expediency but would depend on the consistency of its work.[18] The sanctions against individuals allegedly involved in the conflict have also been described as ‘mainly symbolic’ on the grounds that those persons are unlikely to have financial assets abroad or be interested in international travel.[19] Thus, even before the ICC begins its trial of the alleged perpetrators of the crimes committed in Darfur, which has to date shown no perceptible sign of coming to an end, its credibility has, to some extent, been undermined by the conduct of a political institution. The consequence of this is that people all over the world are observing the ICC’s handling of the matter with keen interest.
The international community has also taken it upon itself to seek compensation for the victims. Given what the victims have gone through, it is impossible to find any reason to criticise such a move. What cannot, however, escape comment is the manner in which the compensation is to be sought. The Commission of inquiry recommends that a compensation commission, which will deal with compensations for the victims, be set up by the Security Council. The Commission's proposal, according to the report, is based on moral as well as legal grounds. It is reasonable to accept that if the seeking of compensation is based on moral grounds then the ICC as a judicial body does not have to be involved. Nonetheless, it is difficult to picture how award of compensation based on moral grounds will not encounter any problem. Victims of rape are not going to be identified by the compensation commission itself. What then will be the test for proving a claim based on rape? Will any individual who claims to be a victim of rape have to undergo a medical examination to prove her case? Regrettably, the Commission's report fails to take account of this eventuality. The Commission argues that
The Commission's proposal also raises the issue of the scope of international law. International law regulates relations between states.[20] On the face of it, individual persons cannot resort to it for compensation. Individuals seek compensation in their national courts for any damage or injury suffered as a result of a state's or another individual’s conduct. This is something the Commission acknowledges in its report. However, in an attempt to justify its proposal for the establishment of a compensation commission, it states in the report:
The emergence of human rights doctrines in the international community and the proclamation of human rights at the universal and national level since the adoption of the United Nations Charter in 1945 had a significant impact on this area as well. In particular, the right to an effective remedy for any serious violation of human rights has been enshrined in many international treaties. Furthermore, the United Nations Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly in 1985, provides that States should develop and make readily available appropriate rights and remedies for victims.[21]
The ICC, which the Commission describes as the only credible mechanism by which the 'Darfur offenders' can be brought to justice, is not seen by the same Commission as a credible or reliable institution to deal with the award of compensations for the Darfur victims. The conclusion that may be drawn is that if award of compensation based on legal grounds is to be entrusted to a commission, which the Security Council is advised to established, then the resort to ICC is far from being the only credible way of bringing perpetrators of international crimes to justice. Similarly, as mentioned above, cost was one of the Commission's reasons for advising against the establishment of an ad hoc committee for the trial of the alleged 'Darfur Offenders'. It is surprising therefore as to why the Commission failed to realise that it is equally expensive to establish a commission to deal with compensation for the victims. With regard to the proposal in question, Tomuschat asserts that:
The creation of a system that would grant compensation also to crimes not only perpetrated by the Janjaweed militias, but also by the rebel movement groups, would bring the Security Council to the outer limits of its jurisdiction. Essentially, the Security Council has been entrusted with powers needed to rein in injustices committed by states. However, the Report has found that the Government of the Sudan bears overall responsibility for the injurious consequences, given its connivance with the Janjaweed forces or, in any event, its laxity in taking protective measures. As far as the rebel movement groups are concerned, according to a practice extending over decades, the Security Council has also addressed such movements by often treating them on the same footing as governmental authorities. Furthermore, a reparation scheme would be profoundly marred by injustice if it used distinctions based on the governmental or non-governmental appurtenance of the perpetrators, which, in many instances, cannot be reliably ascertained.[22]
It can be said that the apart from its initial inaction the international community has performed below expectation with respect to restoration of peace in Darfur. The Security Council's adoption of a number of resolutions by the UN Security Council for the achievement of the same goal is also nothing to write home about. The view that the referral of the case to the ICC does not guarantee international peace and security is shared by many commentators. It has been argued that the ICC could never be a panacea for the ills of international criminal justice nor would it be the answer to states' practice of impunity for international crimes. But it could contribute to the process of narrowing that gap.[23]
In conclusion, the case has already been referred to the ICC, and its withdrawal is highly unlikely. It is hoped that sometime in the future the perpetrators of the crimes, whose arrest and trial has been sanctioned by the Court, will be brought before the Court, but it must be reiterated the international community's response to the conflict is far from ideal.
Reference
[1]Islam, Rafiqul, M. “The Sudanese Darfur Crisis and Internally Displaced Persons in International Law …” International Journal of Refugee Law, 2006 18 (354)
[2]Lattimer, Mark. "UN could have averted Darfur crisis - MRG", Independent Online, October 16, 2006
[3]Kofi Annan's address at Harvard University on 8 July 2004, http:/ /www.cnn.com/2004/WORLD/africa/06/11/sudan.un/index.html.
[4]Report of UNHCHR on 'situation of human rights in the Darfur region of the Sudan', Commission on Human Rights, 61st session, Item 4 of the provisional agenda, UN Doc. E/CN.4/2005/3 of 7 May 2004, 22-25.
[5]http:/ /www.un.org/apps/news/story.asp?NewsID=11271&Cr=sudan&Cr1=; http:/
[6]Measures threatened included oil embargo
[7]The Commission was set up in October 2004 and was composed of five members
[8] http:/ /www.cnn.com/2004/WORLD/africa/07/23/un.sudan.ap/?headline=congress
[9]Paragraph 565 of the report
[10]The Security Council referred the Darfur crisis to the ICC on 31 March 2005
[11]Para 568 of the report
[12]The Prosecutor, however, initiated investigations and submitted a progress report to the Security Council on 13 December 2005
[13] http:/ /www.icc-cpi.int/cases/current_situations/Darfur_Sudan.html.
[14] Paragraph 574 of the report
[15] English-aljazeela.net/NR/exeres/554FAF3A-B267-427A-B9EC-54881BDEOA
[16]Rome Statute, article 12(3)
[17] The Court has no jurisdiction over aggression and terrorism
[18] Bassiouni, Cherif, M. ‘The ICC – Quo Vadis?’ Journal of International Criminal Justice, 2006, Vol.4 No.3 (421)
[19] Cassese, Antonio, ‘Is the ICC still Having Teething Problems? Journal of International Criminal Justice, 2006 Vol. 4 No.3 (434)
[20]This is what the 1949 Geneva Convention is all about.
[21]Paragraph 595 of the report
[22]Tomuschat, Christian, Darfur – Compensation for the Victims, International Journal of Criminal Justice, 2005, Vol 3 No. 3 579
[23] Ibid. fn 18
The humanitarian crisis in Darfur began in 2003, and since mid 2004, the crisis has reached such a height that it is almost beyond description. The crisis is the result of an armed conflict between the Sudanese government and two main rebel groups called the Sudanese Liberation Army (SLA) and the Justice Equality Movement (JEM). The Sudanese government sponsored a group of Arab militias called Janjaweed, which was entrusted with the duty to assist the Sudanese troops in targeting and attacking civilians perceived to be helping and harbouring the rebels. Most of the victims of the crimes committed in Darfur are ethnic black Africans and the rebel groups have been fighting against the Sudanese government over its alleged policies of discrimination, marginalization and underdevelopment of their southern region.[1]
Needless to say, the situation in Darfur is a pathetic one. The UN, and for that matter the international community, is currently striving to restore peace in Darfur by adopting measures to bring the perpetrators of the crimes committed in the area to justice and to obtain reparation for the victims. However, before examining such measures, it is fair to hurl criticism at the UN for its initial inaction. There is no doubt that the crisis could have been prevented at least from reaching its present level had the UN responded promptly to the conflict between the Sudanese government and the rebels. As the executive director of the ‘Minority Rights Group’ (MRG) puts it, “this level of crisis, the killings, rape and displacement could have been foreseen and avoided ... Darfur would just not be in this situation had the UN systems got its act together after Rwanda: their action was too little too late."[2]
The Darfur region has about five million people, most of whom are ethnic black Africans with some Arabs. Whereas the militias fighting on behalf of the Sudanese government employed systematic crimes of ethnic cleansing and slavery to force the southern native black Africans to abandon their way of life, the rebel groups mainly targeted government institutions such as police stations and an airport. They also attacked military aircrafts and killed scores of soldiers. More than thousands of civilians have killed in Darfur since 2003 particularly by the Janjaweed. Another inhumane act committed by the Janjaweed was that it members blocked the flow of food and humanitarian aid meant for the people who had been displaced by the conflict. Such and act was intended to flee the area of the conflict. The militias also indiscriminately committed crimes and human rights abuses, which included rapes, massacres and forced evictions and destruction of water sources. In fact the crisis was such that it has been described by the UN 'as the world's worst humanitarian crisis'[3] Even before the Commission of Inquiry was establish to investigate the situation, a two UN human rights fact-finding reports revealed that many of the acts committed in Darfur might constitute war crimes and/or crimes against humanity and made recommendations to alleviate the suffering of the displaced, to redress the wrongs committed, and to bring the perpetrators to justice[4]
As a starting point of its response to the crisis, which clearly satisfies the requirements of an internal armed conflict under Article 3 of the Geneva Conventions, the UN Security Council adopted a resolution in July 2004 (Security Council Resolution 1556 (2004)) under Chapter VII of the UN Charter, which approved the peace accord signed by the Sudanese government and the rebel groups to end the war. This resolution also required the Sudanese government to disarm its sponsored group, the Janjaweed militia, within thirty days and to punish its members responsible for committing atrocities and human abuses. The resolution contained a threat to impose economic sanctions should Sudan fail to comply.[5] A subsequent resolution (SC Resolution 1564 (2004)) adopted on the crisis in September 2004, threatened to impose additional sanctions on Sudan should it continue to disregard the first resolution.[6] This resolution also requested the UN Secretary-General to set up a Commission[7] of enquiry to investigate “reports of violation of international humanitarian law and human rights law in Darfur by all parties”. It is the recommendations contained in the Commission’s report and referral of the situation in Darfur to the International Criminal Court (ICC) which this paper examines in detail.
The Commission set up by the Secretary-General submitted its report (Report of the International Commission of Inquiry on Darfur to the Secretary-General) to the Secretary-General on 25 January 2005. It must be mentioned that upon the request contained in the Security Council Resolution 1564, the Commission was also entrusted to determine whether or not acts of genocide had occurred. According to Article 5 of the Rome Statute, which established the ICC, the ICC has jurisdiction in accordance with the Statute with respect to the crime of genocide, the crimes against humanity, war crimes and the crime of aggression. With regard to the meaning of genocide, Article 6 of the Statute provides the following:
For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.
The Commission found that the Sudanese government has not pursued a policy of genocide. It is clear from the report that the actus reus of genocide, that is the killing, or causing serious bodily or mental harm, or deliberately inflicting conditions of life likely to bring about physical destruction were found to have occurred. There was also the existence of a protected group being targeted by the authors of criminal conduct. What appeared to be missing, according to the report, was the element of genocidal intent. The report further states:
Generally speaking the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds. Rather, it would seem that those who planned and organized attacks on villages pursued the intent to drive the victims from their homes, primarily for purposes of counter-insurgency warfare.
The commission, however, found that international offenses such as the crimes against humanity and war crimes have been committed in Darfur and that such crimes are no less serious and heinous than genocide. According to the report, there are individual perpetrators who are possibly responsible for the crimes committed in the region. They include officials of the Sudanese government, members of militia forces, members of rebel groups, and certain foreign army officers acting in their personal capacity. The report also found that some government officials, as well as members of militia forces, are also responsible for joint criminal enterprise to commit international crimes. The Commission emphasized in the report that it “makes an assessment of likely suspects, rather than a final judgment as to criminal guilt. The Commission’s conclusion thus runs contrarily to that of the United States’ Congress, which unanimously described the Darfur crisis as ‘genocide’ in July 2004.[8]
The Commission emphasized the need to do justice by referring to the gravity of the crimes committed against the innocent civilians in Darfur. The report advises that those responsible for the crisis must be brought to justice, and measures must also be initiated to bring relief and redress to the victims ‘to complete the process of accountability. Accordingly, the Commission called on the Security Council to immediately refer the Darfur situation to the International Criminal Court (ICC), pursuant to Article 13 of the ICC Statute.[9] The Commission calls upon the Security Council to immediately refer the Darfur situation to the International Criminal Court[10], Pursuant to Article 13(b) of the ICC Statute. The reason for the Commission’s recommendation is that the Darfur situation constitutes a threat to international peace and security. According to the Commission, serious violations of international human rights law and humanitarian law by all parties are continuing. The belief entertained by the Commission is that the prosecution by the ICC of the persons allegedly responsible for the ‘most serious’ crimes in Darfur would contribute to the restoration of peace in the region.
Perpetrators of violations of international humanitarian law and human rights law can be tried by a national court or an international court such as the ICC. The ICC is a court of last resort. This means that if a case is investigated or prosecuted by a national judicial system it will not act unless the national judicial system cannot be relied upon for genuine or fair trial. The Commission has proposed to the Security Council to refer the Darfur situation to the ICC and not to a national court. The Commission states the reason why it believes that a Sudanese national court is not an appropriate court to try the alleged offenders:
…the very nature of most international crimes implies, as a general rule, that they are committed by State officials or with their complicity; often their prosecution is therefore better left to other mechanisms. Considering the nature of the crimes committed in Darfur and the shortcomings of the Sudanese criminal justice system, which have led to effective impunity for the alleged perpetrators, the Commission is of the opinion that the Sudanese courts are unable and unwilling to prosecute and try the alleged offenders. Other mechanisms are needed to do justice. [11]
The Commission also entertains the view that the ICC is the court to be resorted to for a number of reasons. First, the Commission contends that the ICC was established with an eye to crimes likely to threaten peace and security. According to the Commission, the investigation and prosecution of crimes perpetrated in Darfur would have an impact on peace and security. The Commission further contends that, it would be conducive, or contribute to, peace and stability in Darfur, by removing serious obstacles to national reconciliation and the restoration of peaceful relations. Although it will be unfair to disrespect the views of the Commission, it has to be said that the ICC cannot be honestly described as the only appropriate court or, as the Commission put, ‘the only credible way’ of bringing the alleged perpetrators of the crimes committed in Darfur to justice. In fact, there will not be any need to take a case to the ICC if a national court undertakes to investigate and prosecute perpetrators of violations of humanitarian law and human rights law. The Commission’s assertion implies that only the ICC can be relied upon for the fair trial of persons accused of violating humanitarian law and/or human rights law. However, as the world witnessed recently, the former president of Iraq, the late Sadam Hussein, was successfully tried by an Iraqi national court for similar offences. The fact that the ICC “was established with its eye to crimes likely to threaten peace and security” does not also guarantee that resorting to it for the trial of the alleged “Darfur offenders” will contribute to peace and security in Darfur. One would have rather loved to hear nothing more than that the ICC should be resorted to because the Sudanese government is unable or unwilling to act.
Another of the reasons given by the Commission for its assertion that the ICC is the only credible way of bringing the alleged offenders to justice is that the ICC could be activated immediately without any delay – which would be the case if one to establish ad hoc tribunals or so called mixed or internationalised courts. The Commission’s claim is unfounded because although the Security Council referred the Darfur situation to the ICC on March 31 2005 the alleged offenders are yet to be brought to justice.[12] To date, all that is known is that the ICC on 1 May 2007 issued a warrant of arrest for the Minister of State for Humanitarian Affairs in the present Government of the Sudan, Mr Ahmad Muhammad Harun.[13] Besides, the ICC is a newly established court, and therefore whether it is capable of trying a case without delay remains to be seen.
Prior to the Commission’s report, it was hoped that a special tribunal could be set up by the UN Security Council for the trial of the perpetrators of the crimes committed in Darfur, as was the case in countries such as Rwanda for similar crimes. In fact, having a special tribunal to try the alleged perpetrators would have meant that the international community considered the Darfur situation as a special issue which deserves a special attention. However, the Commission advises against other mechanisms for bringing the alleged perpetrators to justice. The reason given by the Commission is that other mechanisms, such as ad hoc tribunals are very expensive and ‘slow in prosecution and punishment of indicted persons.[14] One would have found it reasonable to agree with the Commission if it had argued that since there exists now an international criminal court there is no need for a new mechanism to be put in place to secure the prosecution and punishment of the alleged offenders. As said above, the ICC, being a new court, has no relevant decisions which can be cited in support of an assertion that proceedings in the court will suffer no delay. Clearly, it is the circumstances of a given case that determines how long proceedings will last in court.
The ICC prosecutor took office on 13 June 2003 and since then there have been three self-referrals. Uganda referred to the prosecutor on 29 January 2004, The Democratic Republic of Congo on 19 April 2004 and the Central African Republic on 7 January 2005. Clearly, the rationale for all these self-referrals was to get the prosecutor to conduct investigations into crimes alleged to have been perpetrated by rebels fighting against central authorities. Much as this may be seen as attesting to the fact that a new mechanism for the trial of perpetrators of international crimes has emerged, it is difficult to pinpoint any fruit that these self-referrals to the ICC have yielded. As regards the Darfur situation, the prosecutor had, until a warrant was issued for the arrest of the alleged perpetrators of the crimes in question, reported more than two times to the Security Council, pursuant to resolution 1593 (2005). Given that the Sudan has not yet ratified the Rome Statute, the arrest and trial of the alleged perpetrators of the crime are bound to encounter resistance. Not long after the referral of the case to the ICC, the Sudanese authorities made it clear that if the ICC wanted to carry out observation task, in connection with the Sudanese judicial authorities in order to feel relieved and certain, the Sudanese government had no problem or objection. However, said the Sudanese authorities, if the ICC wanted to begin any procedures to try Sudanese citizens, ‘this is unacceptable.[15]
What Articles 12(3) and 87(5) of the Rome Statute imply is that states that are not party to the treaty are not under obligation to co-operate with the ICC. The treaty will only be binding upon them if they have signed an agreement to co-operate with the court.[16] Apart from not being a state party, the Sudan has not, by declaration lodged with the ICC’s Registrar, accepted the exercise of jurisdiction by the court with regard to the crimes committed in Darfur. Thus it is the Security Council, acting under Chapter VII of the UN Charter, which has triggered the ICC’s jurisdiction by a referral to the court’s prosecutor, pursuant to Article 13 (b) of the Rome Statute. How then, could the ICC be described as the only credible way of bringing the ‘Darfur perpetrators’ to justice? To say the least, the picture painted about the ICC by the Commission is regrettable. It is as if the ICC, which has no jurisdiction over certain categories of international crimes[17] has no shortcomings of its own. It is difficult to imagine how the ICC, which is meant to rely on state co-operation, can function efficiently without such co-operation.
The Security Council has kept itself busy with deliberations on the Darfur situation even after referring the case to the ICC’s prosecutor. Obviously, this explains the Council’s determination to help restore peace in Darfur as soon as possible. Another possible reason is that it is trying to atone for its initial inaction, which caused it much criticism. However, the criticism will not go away in as much as there are still reservations about the fairness and objectivity of the ICC. It is the Security Council’s way of handling the situation that has brought the fairness and objectivity of the Court into question. The case has been referred to the ICC, a judicial body, yet the Security Council cannot stop meddling in the case. The Council’s resolution 1672 (2006), has placed member states under obligation to adopt sanctions against a number of Sudanese nationals involved in the Darfur conflict. The sanctions include freezing of assets abroad and prevention of international travel. It has been argued that the legitimacy of the ICC would not be sustained on the basis of occasional referrals based on political expediency but would depend on the consistency of its work.[18] The sanctions against individuals allegedly involved in the conflict have also been described as ‘mainly symbolic’ on the grounds that those persons are unlikely to have financial assets abroad or be interested in international travel.[19] Thus, even before the ICC begins its trial of the alleged perpetrators of the crimes committed in Darfur, which has to date shown no perceptible sign of coming to an end, its credibility has, to some extent, been undermined by the conduct of a political institution. The consequence of this is that people all over the world are observing the ICC’s handling of the matter with keen interest.
The international community has also taken it upon itself to seek compensation for the victims. Given what the victims have gone through, it is impossible to find any reason to criticise such a move. What cannot, however, escape comment is the manner in which the compensation is to be sought. The Commission of inquiry recommends that a compensation commission, which will deal with compensations for the victims, be set up by the Security Council. The Commission's proposal, according to the report, is based on moral as well as legal grounds. It is reasonable to accept that if the seeking of compensation is based on moral grounds then the ICC as a judicial body does not have to be involved. Nonetheless, it is difficult to picture how award of compensation based on moral grounds will not encounter any problem. Victims of rape are not going to be identified by the compensation commission itself. What then will be the test for proving a claim based on rape? Will any individual who claims to be a victim of rape have to undergo a medical examination to prove her case? Regrettably, the Commission's report fails to take account of this eventuality. The Commission argues that
The Commission's proposal also raises the issue of the scope of international law. International law regulates relations between states.[20] On the face of it, individual persons cannot resort to it for compensation. Individuals seek compensation in their national courts for any damage or injury suffered as a result of a state's or another individual’s conduct. This is something the Commission acknowledges in its report. However, in an attempt to justify its proposal for the establishment of a compensation commission, it states in the report:
The emergence of human rights doctrines in the international community and the proclamation of human rights at the universal and national level since the adoption of the United Nations Charter in 1945 had a significant impact on this area as well. In particular, the right to an effective remedy for any serious violation of human rights has been enshrined in many international treaties. Furthermore, the United Nations Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly in 1985, provides that States should develop and make readily available appropriate rights and remedies for victims.[21]
The ICC, which the Commission describes as the only credible mechanism by which the 'Darfur offenders' can be brought to justice, is not seen by the same Commission as a credible or reliable institution to deal with the award of compensations for the Darfur victims. The conclusion that may be drawn is that if award of compensation based on legal grounds is to be entrusted to a commission, which the Security Council is advised to established, then the resort to ICC is far from being the only credible way of bringing perpetrators of international crimes to justice. Similarly, as mentioned above, cost was one of the Commission's reasons for advising against the establishment of an ad hoc committee for the trial of the alleged 'Darfur Offenders'. It is surprising therefore as to why the Commission failed to realise that it is equally expensive to establish a commission to deal with compensation for the victims. With regard to the proposal in question, Tomuschat asserts that:
The creation of a system that would grant compensation also to crimes not only perpetrated by the Janjaweed militias, but also by the rebel movement groups, would bring the Security Council to the outer limits of its jurisdiction. Essentially, the Security Council has been entrusted with powers needed to rein in injustices committed by states. However, the Report has found that the Government of the Sudan bears overall responsibility for the injurious consequences, given its connivance with the Janjaweed forces or, in any event, its laxity in taking protective measures. As far as the rebel movement groups are concerned, according to a practice extending over decades, the Security Council has also addressed such movements by often treating them on the same footing as governmental authorities. Furthermore, a reparation scheme would be profoundly marred by injustice if it used distinctions based on the governmental or non-governmental appurtenance of the perpetrators, which, in many instances, cannot be reliably ascertained.[22]
It can be said that the apart from its initial inaction the international community has performed below expectation with respect to restoration of peace in Darfur. The Security Council's adoption of a number of resolutions by the UN Security Council for the achievement of the same goal is also nothing to write home about. The view that the referral of the case to the ICC does not guarantee international peace and security is shared by many commentators. It has been argued that the ICC could never be a panacea for the ills of international criminal justice nor would it be the answer to states' practice of impunity for international crimes. But it could contribute to the process of narrowing that gap.[23]
In conclusion, the case has already been referred to the ICC, and its withdrawal is highly unlikely. It is hoped that sometime in the future the perpetrators of the crimes, whose arrest and trial has been sanctioned by the Court, will be brought before the Court, but it must be reiterated the international community's response to the conflict is far from ideal.
Reference
[1]Islam, Rafiqul, M. “The Sudanese Darfur Crisis and Internally Displaced Persons in International Law …” International Journal of Refugee Law, 2006 18 (354)
[2]Lattimer, Mark. "UN could have averted Darfur crisis - MRG", Independent Online, October 16, 2006
[3]Kofi Annan's address at Harvard University on 8 July 2004, http:/ /www.cnn.com/2004/WORLD/africa/06/11/sudan.un/index.html.
[4]Report of UNHCHR on 'situation of human rights in the Darfur region of the Sudan', Commission on Human Rights, 61st session, Item 4 of the provisional agenda, UN Doc. E/CN.4/2005/3 of 7 May 2004, 22-25.
[5]http:/ /www.un.org/apps/news/story.asp?NewsID=11271&Cr=sudan&Cr1=; http:/
[6]Measures threatened included oil embargo
[7]The Commission was set up in October 2004 and was composed of five members
[8] http:/ /www.cnn.com/2004/WORLD/africa/07/23/un.sudan.ap/?headline=congress
[9]Paragraph 565 of the report
[10]The Security Council referred the Darfur crisis to the ICC on 31 March 2005
[11]Para 568 of the report
[12]The Prosecutor, however, initiated investigations and submitted a progress report to the Security Council on 13 December 2005
[13] http:/ /www.icc-cpi.int/cases/current_situations/Darfur_Sudan.html.
[14] Paragraph 574 of the report
[15] English-aljazeela.net/NR/exeres/554FAF3A-B267-427A-B9EC-54881BDEOA
[16]Rome Statute, article 12(3)
[17] The Court has no jurisdiction over aggression and terrorism
[18] Bassiouni, Cherif, M. ‘The ICC – Quo Vadis?’ Journal of International Criminal Justice, 2006, Vol.4 No.3 (421)
[19] Cassese, Antonio, ‘Is the ICC still Having Teething Problems? Journal of International Criminal Justice, 2006 Vol. 4 No.3 (434)
[20]This is what the 1949 Geneva Convention is all about.
[21]Paragraph 595 of the report
[22]Tomuschat, Christian, Darfur – Compensation for the Victims, International Journal of Criminal Justice, 2005, Vol 3 No. 3 579
[23] Ibid. fn 18
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