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Should International Criminal Court Have Jurisdiction Over Darfur Atrocities?


With terms like “genocide” and “crimes against humanity” being used to describe the situation in Darfur, there’s growing debate over how to prosecute those responsible. Some are calling for the International Criminal Court to take the lead. But others say simply threatening prosecutions won’t end the violence in Darfur or eliminate it causes.

Last summer, when Harvard professor Samantha Power visited Darfur, she asked many people where they would go if they could escape the violence? She says the “surprisingly common answer” was The Hague. She says they had somehow heard it was home to a court and they “wanted to go testify.”

"I wouldn’t say they knew about the International Criminal Court. That was a degree of specificity that I didn’t encounter. What they knew was that there was this thing called The Hague that was out there. I didn’t even ask if they knew where The Hague was. But they knew there was a place where bad people were sent and where over the course of recent years people like them who’d suffered had had the ability to go and testify," says Professor Power.

She describes their desire to testify as a “resilience and a determination.”

"The single-mindedness of this desire, A, to have the story told by an outsider like me or a historian down the road – but a willingness to open up and go back over all of that. Those grisly details of what has been done to them. And B, ultimately a desire to see justice done," she says.

One of those who are calling for the International Criminal Court to act on Darfur is former British Foreign Secretary Robin Cook. In a commentary in The Guardian, he writes, “The gravest, most grotesque crimes against humanity since the International Criminal Court was set up are to be found in Darfur.”

Mr. Cook supports a recommendation by a recent UN commission to refer the matter to the ICC; and he criticized the Bush administration for its opposition to the court. He writes that for the last four years the Bush administration has campaigned relentlessly against the court. And he says hostility to it has come to occupy a central and symbolic role in the US “belief that its freedom of action should never be constrained by international jurisdiction.”

Samantha Power of Harvard’s John F. Kennedy School of Communications says the Bush Administration may have “boxed itself in” on the issue by using the word “genocide,” but rejecting use of the court.

However, Jeremy Rabkin, Cornell University, professor of government, strongly disagrees. He says those pressing for ICC involvement in Darfur “have their priorities backwards.”

He says, "The idea that we are boxed in because we used one word rather than another word, it’s just silly. What is it that people in Europe really want to happen in the Sudan? And I’m sure that they’d like the killing to stop. But what’s their priority? And if you say that their priority is seeing that justice is done, it’s a lie. It’s just silly. Of course that’s not their priority. If that were their priority, their first thing in justice is to make sure nobody else is killed. And to do that, you’d have to have either troop deployment or intervention, which is out of the question for them. They don’t even want to think about it."

Professor Rabkin warns against the use of making empty threats in these circumstances.

He says, "Threatening prosecutions does not necessarily, it doesn’t usually, I’m not sure ever has stopped people from doing barbarous, monstrous atrocities. We threatened the Nazis during the Second World War. There are going to be war crimes after the war. This didn’t stop them. You have to think about how to organize the right level of either military intervention or severe sanctions on the government of Sudan."

Professor Power says the Bush Administration has several options regarding the International Criminal Court and Darfur.

"I’m just curious as to how it’s going to turn out. Will the Bush Administration recognize that it has no allies on this issue? That the Europeans are determined to go forward with the criminal court prosecution. Will it abstain in the UN Security Council so that these prosecutions go forward? Or is its ideology and its ideological contempt for the court so great that it would sooner see no prosecution occur than to see people investigated and prosecuted at The Hague," she says.

The Bush Administration reportedly may support a tribunal backed by the African Union and United Nations, similar to the Rwanda tribunal based in Arusha, Tanzania.

There’s also concern that the ICC could be used to try to intimidate the United States for some military action.

Cornell’s Professor Rabkin says it is unacceptable to the United States for an international body to try to bully it into changing its policies. He says creating more international institutions is an effort to counter-balance US power.

"I believe the real purpose of that is to give momentum to a view of the world in which the United States is subordinate to international authority. I think that is the real reason. They think America has a military, which is so many times more powerful than any possible rival or combination of rival powers. That’s really scary. And rather than people in Europe build up their own military to be a counter weight, which would be really, really expensive and a little bit frightening to them because they don’t want to think about actual war – they are drawn to this notion that, yes, but there will be a court, which will sit on top of the United States and say no to it," he says.

Samantha Power says the ICC is unlikely to target the United States.

"The ICC jurisdiction is very carefully worded. It says it will only prosecute those crimes that national systems are either unable or unwilling to prosecute. So, it’s a court that’s really only meant to kick in where failed states or genocidal states are concerned," she says.

But in order to have successful prosecutions and subsequent sentencing, suspects must first be in custody. Professor Rabkin says that hasn’t happened yet in the case of Darfur.

He askes, "How are you going to get these people? I mean everyone is talking as if you just start a prosecution and then just magically these people are apprehended or turn themselves in. Because they are so intimidated by the moral authority of The Hague. It’s silly. Really nasty people are running loose there in the Sudan. How are we going to catch them to put them on trial?"

He says it should be the Sudanese people who try those accused of genocide or crimes against humanity. But says Sudan must have a government capable and willing to allow that.

While in Sudan, Harvard’s Professor Power says she met Musa Hilal, coordinator of the Janjaweed militia, which has been accused of atrocities. She says while meeting with reporters in Khartoum, he made a point of saying he was not a war criminal and did not belong at The Hague.

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