A YEAR ago, the International Criminal Court (ICC) began its investigation into atrocities in Darfur. A “veil of impunity” obscuring the burnt-black, corpse-strewn villages of Sudan’s western region would be parted. So said Kofi Annan in cheering the earlier decision of the United Nations Security Council to refer the vicious conflict to the ICC. Improvised solutions were avoided. Instead, the Security Council laid its hands on existing levers of law enforcement. Unlike earlier ad hoc UN courts for Yugoslavia and Rwanda, the ICC’s jurisdiction is based upon signature of its Rome Statute, not the UN’s Charter. But, to keep the peace, the court’s jurisdiction would be imposed by the Security Council on a non-member state — an unwilling Sudan. In so doing, the UN made Darfur the defining case of the infant ICC.
After a year of work, the ICC’s progress could, generously, be called steady. Admittedly, the difficulties are legion. In theory, the ICC stands ready to investigate atrocity anywhere in the world. In practice, the Office of the Prosecutor must stand by, laboriously recruiting and training a staff — legal interpreters, investigators, evidence collectors and witness interviewers — specifically suited to this conflict zone and its crimes.
Unlike the Nuremberg Tribunal that prosecuted the Nazi leadership, the ICC is not an embellishment of huge diplomatic, military and economic forces. Friendly armies of occupation do not stand ready to lend the prosecutor every assistance. Instead, the Office of the Prosecutor is forced to investigate from afar: it has yet to set foot inside Sudan. Unable to secure evidence, witnesses and accused, the ICC is all but helpless until order is restored in Darfur.
The ICC depends upon the assistance of the African Union (AU). The Union’s small number of hapless troops on the ground struggle to police, as yet, flimsy peace agreements. The Security Council has demanded that the violent factions disarm and the AU force be swiftly scaled up. Much depends upon Sudan’s truculent government. Until now, little has been forced from them. Time will test the limits of its potentially self-incriminating co-operation.
What is apparent is that Khartoum has begun to adapt its tactics to the rules that the ICC brings with it. The international courtroom in The Hague is intended to complement not supplant national justice. The ICC can take on criminal cases only when local courts are “unwilling or unable” to investigate or prosecute. Sudan has set up a specialist tribunal — named, obviously, the Special Court for Darfur — that it claims is carrying on the work the ICC would do. But, to date, the only defendants have been a handful of the lowest ranks and civilians. The most serious crimes prosecuted: theft of livestock and unlicensed possession of firearms. In other words, these are “no-show” trials. The ICC can look past trials held with the purpose of shielding the accused from international justice. But it must do so diligently, on a case-by-case basis.
Advertisement
On some doubtless but distant day, The Hague will be host to solemn trials. But, is this inflexible vision of justice unavoidable? A more limber ICC, focused on outcome, might unexpectedly swamp the Sudanese court with aid and experts. In other words, call Khartoum’s bluff — build local legal capacity, demand accountability and instil human rights today instead of holding out the familiar promise of juggernaut justice for tomorrow.
The ICC was hailed as an improvement on its predecessors: instead of sitting out a conflict, it could intervene at the onset of fighting. Yet, engulfed at first with an excited debate to discern genocide — now deemed absent — Darfur’s anonymous crimes of mere mass atrocity have fallen from the headlines. Peace talks are in earnest but oblivious to crime, guilt and punishment — the obsessions of international justice. The audacity of deploying a prosecutorial presence to a war zone now seems a hoax stripped of hubris. Human rights campaigners have long chanted, “no peace without justice”. Darfur suggests: no justice without peace.
Advertisement
The author is legal adviser to the Civil Division European Office of the US Department of Justice. This is a personal view.