A U.N. Commission of Inquiry that the United States helped create recently found that the International Criminal Court (ICC) is the "single best mechanism" and the "only credible way" of ensuring justice for Darfur's victims. The U.N. Commission of Inquiry also detailed in depth in its report why other mechanisms would be inadvisable to bring justice for atrocities in Darfur. (See U.N. Commission of Inquiry on Why Alternatives to the ICC Are Inadvisable for Darfur for relevant excerpts from the report.) Because Sudan is not a party to the treaty establishing the ICC, a Security Council referral is needed for the court to prosecute crimes committed in Darfur.
Ignoring the commission's strong recommendation that the Security Council immediately refer the situation in Darfur to the ICC, Washington has indicated that it opposes a Security Council referral because it does not "want to be party to legitimizing the ICC." Instead it has proposed a new tribunal based in Tanzania administered by the United Nations and the African Union. The U.S. proposal may sound attractive on its face, with emphasis on encouraging "African ownership" and using an infrastructure "already in place" at the International Criminal Tribunal for Rwanda to "begin operating quickly." However, upon closer scrutiny, the U.S. proposal for a new tribunal for Darfur simply does not present a viable option to effectively handle the challenges of ensuring justice for crimes committed in Darfur.
The U.S. Proposal Spells Delay, and Delay Means Death
The U.S. proposal states that its tribunal for Darfur could "begin operations without delay" because it would share physical infrastructure with the International Criminal Tribunal for Rwanda (ICTR). However, setting up the tribunal would likely take a long time and create unnecessary delay. This would undermine the deterrent effect of prosecutions and likely lead to more lives being lost.
1. Setting up a new tribunal requires a lot more than physical infrastructure.
- A statute, rules of procedure and evidence, and regulations need to be negotiated, staff would need to be recruited, and qualified judges and a prosecutor would need to be appointed. These are extremely time-consuming tasks.
- The proposed staff appointment process - coordination between the African Union and the U.N. Secretary-General - can also be expected to be a time intensive bureaucratic process. Appointing judges for the second trial chamber at the Sierra Leone Special Court, which took months and months, gives an indication of how difficult this can be.
2. In reality, the ICTR doesn't have infrastructure to spare.
- With pressure to complete trials by 2008, the ICTR is operating at full capacity.
- In an address to staff on February 10, the ICTR president stated that increasing courtroom capacity and scheduling new trials while handling the eight trials already in progress is a challenge. An additional courtroom is currently being constructed to ensure more steady progress to complete trials.
- The ICTR is also considering sending some of its cases to national courts so that it can complete functioning on schedule.
- This is not a situation where there is spare infrastructure. The basis for the U.S. proposal seems to be lacking.
3. By contrast, the ICC could open investigations relatively quickly and efficiently.
- The ICC is a fully functioning institution. Although it would need to hire several investigators, it already has in place a statute, rules of procedure and evidence, staff, judges, and physical infrastructure.
- By beginning investigations quickly, it could maximize the deterrent effect of prosecutions to stop the violence against civilians in Darfur.
The U.S. Proposal Would Lack the Necessary Permanence to Outlast Obstruction
The U.S. proposal for a new tribunal for Darfur would lack the staying power to withstand predictable non-cooperation by the Sudanese government in the hopes of running out the tribunal's clock.
1. Ad hoc tribunals are, by their nature, temporary.
- The U.S. proposal states that its tribunal would "operate for 3-5 years, renewable annually as needed."
- Because no one wants to support a single-issue court forever as they are expensive, the new tribunal for Darfur would in practice be time-limited like the existing ad hoc tribunals for the former Yugoslavia, Rwanda, and Sierra Leone.
2. Their time-limited nature creates an incentive for non-cooperation.
- Radovan Karadzic and Ratko Mladic are still at liberty some nine years after indictment by the Yugoslav tribunal. In the face of criticisms over expense and delay, this tribunal is under international pressure to wrap up operations by 2010.
- Charles Taylor continues to evade prosecution before the Special Court for Sierra Leone. Due to financial considerations, the court is expected to operate for less time than other ad hoc tribunals, maybe as little as four years.
- Time-limited courts encourage trying to run out the clock as a way to evade justice.
3. Demonstrated staying power is essential for maximizing the deterrent effect of any justice institution assigned responsibility for Darfur.
- The government in Khartoum is likely to remain in power for several years.
- Because those who might be investigated and tried for crimes include persons in or close to the Sudanese government, non-cooperation is predictable.
4. The ICC is here to stay.
- As a permanent international court, the ICC does not face pressure to complete operations before international support wanes.
- It can outlast non-cooperation - precisely the signal that needs to be sent to those most responsible for committing serious crimes in Darfur.
The U.S. Proposal Would Mean Needless Expense for a Weaker Result
The U.S. proposal argues that it does not see a significant difference in cost between its proposal and referral, and that the proposed court may even be less costly. However, ICC prosecutions are unlikely to come anywhere near the estimated cost of the U.S. proposal.
1. The U.S. proposal for a new tribunal for Darfur is likely to cost far more than the ICC.
- According to the U.S. proposal, its tribunal is expected to cost $30 million for the first 6-8 months and then up to $100 million annually.
- The entire budget for the ICC for 2005 is approximately $87 million. This includes investigations into three different situations and payment for general staff and judges.
- While the ICC would have to hire additional investigators, this expense cannot compare with the estimate for the new tribunal for Darfur.
2. The U.S. wants countries that already pay for the ICC - a capable and far preferable option - to share the cost for the U.S. proposed tribunal.
- The U.S. proposal says that the "preferred funding option" is U.N. assessed contributions. This would mean that countries that pay for the ICC, the preferable option, would pay for this new tribunal.
The U.S. Proposal is a Far Cry from being the "African Alternative"
The U.S. proposal says that its tribunal would be "more appropriate" than referral to the ICC as it "takes full account of and reinforces" the African Union (AU) role in addressing the Darfur conflict. This is misleading and inaccurate.
1. The ICC has widespread support in Africa.
- The African Union has many member states that are strong supporters of the ICC and that were heavily involved in the establishment of the court.
- Four AU countries have further demonstrated their support for the ICC by asking the court to investigate crimes committed in their countries.
- Additionally, the ICC can, by statute, sit in Africa.
2. The AU is unlikely to support the U.S. proposal.
- The diverse membership of the AU is unlikely to come to consensus about this court. What the United States is probably trying to do is attract the support of a few African countries to give it the imprimatur of African legitimacy.
3. There are real questions about the legitimacy of the U.S. proposed new tribunal for Darfur.
- It is quite likely that the United States would end up shouldering much of the cost of its tribunal, particularly since there is strong opposition on the Security Council to paying for a new ad hoc tribunal.
- This would certainly cast doubt on the tribunal's legitimacy and make the court highly dependent on the goodwill of the United States to keep it running. The United States could kill the court at any time.
The Proposed Temporal Jurisdiction for the U.S. Tribunal Offers No Significant Advantage
The United States argues that its tribunal would be preferable because serious crimes were committed in Darfur prior to July 1, 2002 - when the ICC's jurisdiction begins.
1. However, the overwhelming majority of serious crimes committed in relation to the conflict were committed after July 1, 2002.
2. The advantages of speed and staying power of the ICC outweigh any benefit of being able to potentially prosecute a small number of additional crimes.