The Bush administration is creating a deadly delay for the people of Darfur by attempting to block the U.N. Security Council from referring Darfur atrocities to the International Criminal Court, Human Rights Watch said in a letter to U.S. Secretary of State Condoleezza Rice.
Last week, one day after the Sudanese military reportedly killed or wounded nearly 100 civilians in an air strike in southern Darfur, the United States put forth a time-consuming, costly alternative for justice to the already functioning International Criminal Court (ICC): that the Security Council set up a new ad hoc tribunal for Darfur and house it in Tanzania, using the facilities of the international court that is currently prosecuting perpetrators of Rwanda's 1994 genocide.
This week, the U.N. Security Council is expected to receive the findings of the commission of inquiry it established to investigate violations of international human rights and humanitarian law in Darfur. It was also charged with determining if acts of genocide have occurred, and identifying perpetrators with a view to ensuring accountability. While identifying several options, the commission is likely to recommend that the Security Council refer the Darfur situation to the ICC.
"The delay involved in setting up a new tribunal would only lead to the loss of more innocent lives in Darfur," said Richard Dicker, director of the International Justice Program at Human Rights Watch. "The Bush administration seems willing to sacrifice Darfur's victims to its ideological campaign against the court."
Since Sudan is not a party to the court, the ICC would require a referral from the Security Council. An ICC referral is the course of action that can best guarantee efficient and effective prosecution of those most responsible for these atrocities, Human Rights Watch said.
The U.S. ambassador-at-large for war crimes, Pierre-Richard Prosper, on Thursday presented other Security Council members with the idea of setting up a new ad hoc court for Darfur. Explaining the U.S. rationale, he said, "We don't want to be party to legitimizing the ICC."
The U.S. fear of politically motivated prosecutions of Americans would not be an issue in Darfur. There are no U.S. citizens who would be at risk for prosecution for genocide, war crimes, or crimes against humanity in Darfur. As the ICC would assume authority over the situation through a Security Council-controlled referral, the Security Council would retain a check on authorization of any future referrals. Human Rights Watch also noted that existing anti-ICC U.S. legislation, the American Service-Members' Protection Act, leaves open the possibility for U.S. support for some ICC prosecutions.
Setting up a new tribunal would be a time consuming and complicated process. Establishing a new court requires creating a new statute and rules, recruiting staff, and electing judges. Even if the physical structures of the International Criminal Tribunal for Rwanda were used, as the Bush administration has proposed, it could take more than a year to get the new tribunal off the ground.
By contrast, the ICC is already up and running as a permanent criminal tribunal. It could promptly open investigations of those most responsible for serious crimes in Darfur. This would maximize the deterrent value, thereby helping to save lives.
On Thursday, Condoleezza Rice begins her first visit to Europe as the new U.S. secretary of state. Britain, a Security Council member, is among the eight countries Rice will visit.
"Given the ongoing heinous crimes in Darfur, Washington should set aside its dogmatic objections to the ICC and embrace the best course for justice," said Dicker. "Tony Blair and other European allies need to send a clear message to Condoleezza Rice. Europe should insist that it won't forsake its commitment to justice in Darfur because of the Bush administration's aversion to the ICC."
Since early 2003, the Sudanese government and its Janjaweed militias have turned Darfur into the site of one of the world's most serious humanitarian disasters. Despite a ceasefire agreement in April between the Sudanese government and two rebel groups in Darfur, the past few months have seen a new surge in fighting. Continued attacks on civilians and aid workers have hampered relief operations to the more than 1.6 million people who have fled government and militia attacks on their villages since early 2003. Widespread impunity has contributed to continued insecurity for civilians.