This excerpt is taken from Section IV of the Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, dated January 25, 2005. The following paragraphs (573-582) discuss the commission's findings with regard to the inadvisability of mechanisms other than the International Criminal Court (ICC) to bring justice for crimes in Darfur.
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573. The Commission considers that the ICC is the only credible way of bringing alleged perpetrators to justice. It strongly advises against other measures.
(a.) The inadvisability of setting up an ad hoc International Criminal Tribunal
574. Given that international action is urgently needed, one might consider opportune to establish an ad hoc International Criminal Tribunal, as was the case for previous armed conflicts such as those in the former Yugoslavia and in Rwanda, when the ICC did not exist yet. However, at least two considerations militate against such a solution. First, these Tribunals, however meritorious, are very expensive. Secondly, at least so far, on a number of grounds they have been rather slow in the prosecution and punishment of the indicted persons. It would seem that it is primarily for these reasons that at present no political will appears to exist in the international community to set up yet another ad hoc International Criminal Tribunal (another major reason being that now a permanent and fully-fledged international criminal institution is available).
(b.) The inadvisability to expand to mandate of one of the existing Ad Hoc Criminal Criminal Tribunals
575. The same reasons hold true against the possible expansion, by the Security Council, of the mandate of the ICTY or the ICTR, so as to also include jurisdiction over crimes committed in Darfur. First, this expansion would be time-consuming. It would require, after a decision of the Security Council, the election of new judges and new prosecutors as well as the appointment of Registry staff. Indeed, at present the Tribunals are overstretched, for they are working very hard to implement to "completion strategy" elaborated and approved by the Security Council. Consequently, any new task for either Ad Hoc Criminal Tribunal would require new personnel, at all levels. In addition, the allocation of new tasks and the election or appointment of new staff would obviously require new financing. Thus, the second disadvantage of this option is that it would be very expensive. It should be added the conferment of a new mandate on one of the existing Tribunals would exhibit a third drawback: such expansion could end up creating great confusion in the Tribunal, which all of sudden would have to redesign its priorities and reconvert its tasks so as to accommodate the new functions.
(c.) The inadvisability of establishing mixed courts
576. Where, as in Sudan, States are faced with emergency situations involving the commission of large-scale atrocities, an option may be not to resort to national or international criminal courts, but rather to establish courts that are mixed in their composition, that is consisting of both international judges and prosecutors and of judges and prosecutors having the nationality of the State where the trials are held.
577. The mixed courts established in other conflicts have followed two similar but distinct models. First, the mixed courts can be organs of the relevant State, being part of its judiciary, as in Kosovo, East Timor, Bosnia and Cambodia. Alternatively, the courts may be international in nature, that is, freestanding tribunals not part of the national judiciary, as in Sierra Leone. The latter, for instance, is an international criminal court, but some of its judges and other officials are nationals of Sierra Leone, giving it a hybrid character which makes it different from other international criminal courts, such as the ICC, the ICTY and the ICTR. It also differs from these international criminal courts in that it is located in the country where the crimes occurred and it is funded by voluntary contributions (not assessed contributions from the United Nations budget or, as is the case for the ICC, by the States parties).
578. One obvious drawback for the creation of a special court for the crimes committed in Darfur is its financial implications. The special court for Sierra Leone, with its voluntary contributions, is hardly coping with the demands of justice there. Another major drawback can be seen in the time-consuming process for establishing these courts by means of an agreement with the United Nations. The ICC offers the net advantage, as noted above, to impose no significant financial burden on the international community and to be immediately available.
579. Thirdly, the investigation and prosecution would relate to persons enjoying authority and prestige in the country and wielding control over the State apparatus. The establishment of a special court by agreement between the actual Government and the United Nations for the investigation and prosecution of members of that very Government seems unlikely. Moreover, the situation of the national judges who would sit on courts dealing with crimes which may have been committed by leaders would not only be uncomfortable, but unbearable and dangerous.
580. Fourthly, many of the Sudanese laws are grossly incompatible with international norms. To establish mixed courts with the possibility for them of relying upon the national legal system would give rise to serious problems, particularly with regard to the 1991 Sudanese criminal procedural law. In contrast, the ICC constitutes a self-contained regime, with a set of detailed rules on both substantive and procedural law that are fully attuned to respect for the fundamental human rights all those involved in criminal proceedings before the Court.
581. Furthermore, and importantly, the situation of Sudan is distinguishable in at least one respect from most situations where a special court has been created in the past. The impugned crimes are within the jurisdiction rationae temporis of the ICC, i.e. the crimes discussed in this Report were committed after 1 July 2002 [See ICC Statute, article 11].
582. Based on all of the above, the Commission strongly holds the view that resort to the ICC, the only truly international criminal institution, is the single best mechanism to allow justice to be made for the crimes committed in Darfur.