Dr. Condoleezza Rice
Secretary of State-Designate
Assistant to the President for National Security Affairs
Dear Dr. Rice,
The United States has been one of the strongest proponents of ending atrocities committed in Darfur. Secretary of State Colin Powell's visit to the region, the administration's and Congress's findings that genocide has been committed in Darfur, as well as U.S. efforts to secure strong resolutions on Darfur at the U.N. Security Council have helped to galvanize attention and action to stop violence against civilians.
In these efforts, the United States has recognized the importance of combating widespread impunity for the worst human rights crimes. In particular, it proposed the creation of an independent U.N. Commission of Inquiry, authorized under Security Council Resolution 1564 (2004), "to investigate reports of violations of international humanitarian law and human rights law in Darfur by all parties, to determine also whether or not acts of genocide have occurred, and to identify the perpetrators of such violations with a view to ensuring that those responsible are held accountable." Human Rights Watch shares the belief that justice for crimes committed in Darfur is essential. The impunity enjoyed to date by key perpetrators sends the signal that continuing crimes, including targeted and indiscriminate attacks on civilians, murder, rape, and forced displacement in the context of ethnic cleansing, are tolerated.
In the coming weeks, the United States' commitment to ensuring justice for atrocities committed in Darfur will be put to the test. The Commission of Inquiry is expected to report back to the U.N. Secretary-General by January 25, 2005. Following months of inaction by the Sudanese government to prosecute the crimes being committed in Darfur, the Security Council must act on this report to ensure accountability.
A Security Council referral to the International Criminal Court (ICC) is the course of action that can best guarantee efficient and effective prosecution of
those most responsible for these crimes. Accordingly, we urge the United States to set aside its opposition to the ICC in this specific case of declared genocide by supporting or at least abstaining from a Security Council referral of the situation in Darfur. A Security Council referral in this instance would not implicate the United States' main concern about the ICC - namely, prosecution commenced without Security Council approval - and would be consistent with the U.S. government's strong commitment to the victims of Darfur.
A resolution referring the situation to the ICC also has the greatest chance of passage at the Council. Nine members of the Security Council are parties to the ICC. This is the same number of affirmative votes needed to pass a resolution. Support for a proposal to create a new ad hoc tribunal or extend the jurisdiction of an existing ad hoc tribunal to cover crimes committed in Darfur is far less clear. Council members have strongly criticized the existing ad hoc international tribunals for the former Yugoslavia and Rwanda for expense and delay and are looking to wind them down, not extend them.
A Security Council Referral to the ICC Is the Course of Action that Can Best Ensure Justice Is Done for Crimes Committed in Darfur
As a permanent international court with a mandate to prosecute genocide, war crimes, and crimes against humanity when national courts are unable or unwilling to do so, the ICC was created to address exactly the type of situation in Darfur. Although prosecuting widespread atrocities would present challenges for any international or internationalized criminal tribunal, the ICC is preferable to other alternatives.
National prosecutions are not viable. In the face of Security Council resolutions calling for justice (Resolutions 1564 and 1556 (2004)), the Sudanese government has not taken any meaningful steps to bring those responsible to account. There are also serious concerns as to whether prosecutions by the Sudanese government, even if pursued in good faith, could be conducted in accordance with international standards. Human rights groups' observation of judicial proceedings in Darfur indicates that trial conditions routinely fall far short of international fair trial standards.
A new ad hoc international or national-international tribunal would take too long to establish. In the case of the Special Court for Sierra Leone, nearly two years passed between the time the Security Council requested that the U.N. Secretary-General begin negotiations to create a court for crimes committed in Sierra Leone, and the beginning of the functioning of the court in Freetown. For the International Criminal Tribunal for the Former Yugoslavia (ICTY), it took approximately a year to begin recruiting staff in the Office of the Prosecutor following authorization by the Security Council to create the tribunal. While the ICC has just begun its first two investigations and has yet to take its first case to trial, it is a functioning institution and could begin investigations into crimes committed in Darfur more quickly than any new ad hoc tribunal. I was recently in Khartoum and saw how worried Sudanese officials were about the prospect of ICC prosecution. Because the ICC could operate more quickly than a new ad hoc tribunal, its deterrent value would be maximized and lives could be saved.
As time-limited institutions, ad hoc tribunals, whether international or national-international, are poorly placed to withstand a stance of non-cooperation by the Sudanese government. This would be true not only of a new tribunal, but also of existing ad hoc tribunals, such as the International Criminal Tribunal for Rwanda, which we understand has been suggested as a possible forum to try those most responsible for crimes committed in Darfur. The cases of Radovan Karadzic and Ratko Mladic are illustrative. These key indictees of the ICTY are still at liberty as the tribunal has begun to implement a completion strategy and some nine years after these individuals were indicted. The Sierra Leone Special Court, which is expected to operate on a much shorter time frame, is hampered by Nigeria's lack of cooperation to deliver former Liberian president Charles Taylor to the court. There is a risk that these fugitives could escape justice by waiting out the clock. Given that those who might be investigated and tried for crimes committed in Darfur include persons in or close to the Sudanese government, its non-cooperation is predictable.
As a permanent institution, the ICC is better positioned to outlast a stance of non-cooperation. It does not face time pressures that exist for ad hoc tribunals to complete operations before support wanes. It provides a greater potential to send the signal that justice cannot be ignored and that indictees cannot simply let time run out in order to evade justice.
The United States Should Support or at Least Abstain from a Security Council Referral of the Situation in Darfur
As the course of action that can best ensure that justice is done, we urge the United States to support or at least abstain from a Security Council referral of the situation in Darfur. U.S. support for a referral in this instance would not trigger the concerns that have been stated by the United States in relation to the ICC.
First, the United States has indicated that its opposition to the court is due to its concern over the possibility of politically motivated prosecutions of U.S. nationals. In the case of Darfur, there are no U.S. nationals who are at risk of prosecutions for genocide, war crimes, or crimes against humanity.
Second, a Security Council referral is a limited and controlled authorization of the ICC's jurisdiction. It does not suggest support for other means by which the ICC assumes jurisdiction. During the negotiations of the ICC treaty in Rome, the U.S. government favored an ICC whose jurisdiction would be triggered by Security Council referral since that would allow the United States government, as a permanent member, to block inappropriate prosecutions. A Security Council referral today would be consistent with that position.
Support for a referral for Darfur would also be consistent with current U.S. legislation. The anti-ICC American Service-Members' Protection Act (ASPA) leaves open the possibility for the United States to support the ICC in cases like Darfur. Specifically, the ASPA indicates that it should not be construed to preclude international efforts to bring foreign nationals accused of genocide, war crimes, or crimes against humanity to justice. Section 2015 states: "[n]othing in this title shall prohibit the United States from rendering assistance to international efforts to bring to justice...other foreign nationals accused of genocide, war crimes or crimes against humanity." In the case of Darfur, the ICC could serve as the "international effort" for bringing those most responsible for serious crimes to justice.
The ASPA also provides an exception to the general ban on cooperation with the ICC through an exercise of the president's power and authority. The provision, section 2011, states that previous sections "shall not apply to any action or actions with respect to a specific matter involving the International Criminal Court taken or directed by the President on a case-by-case basis in the exercise of the President's authority as Commander in Chief of the Armed Forces of the United States...or in the exercise of the executive power." The catastrophe in Darfur clearly provides an appropriate occasion for President Bush to exercise such authority.
The United States need not vote in favor of a Security Council referral of the situation in Darfur to the ICC. It need only indicate its willingness to accept a referral and abstain from a vote on such a proposal. As the U.N. Secretary-General's High-level Panel on Threats, Challenges and Change recently urged, the use of the veto should "be limited to matters where vital interests are genuinely at stake." The High-level panel further asked "the permanent members, in their individual capacities, to pledge themselves to refrain from the use of the veto in cases of genocide and large-scale human rights abuses" (A/59/565, para. 256). Human Rights Watch strongly urges that if the United States cannot support a referral to the ICC of the situation in Darfur, it should abstain, not veto referral.
When the United States indicated that it would not be bound by the objectives and purposes of the Rome Treaty in May 2002, U.S. officials stated that "we will not attack, seek to undermine or wage war against the ICC." We hope that the United States will act in accordance with this pledge by prioritizing its commitment to the people of Darfur over its opposition to the ICC. While we do not know what the Commission of Inquiry will specifically recommend, we urge the United States to act on its findings by supporting or at least abstaining from a Security Council referral of the situation in Darfur to the ICC. As the ICC presents the way to best ensure that those most responsible for committing atrocities in Darfur are held to account, the people of Darfur deserve nothing less.