Assigning Blame for the Darfur Deadlock

I’ve blogged before suggesting that the U.N. was being an obstacle to more action to stop the atrocities in Darfur, but perhaps I was unfair to the UN. Its report on Darfur (which can be found here) found plenty of horrible atrocities (though not genocide) that it believes rises to the level of war crimes. More to the point, the report calls for the Security Council to refer the case to the ICC. In this way, the U.S. insistence on opposing an ICC referral seems to be the real obstacle to progress. That is certainly how media coverage from Reuters, the NYT and the BBC are portraying it. And there’s some truth to this. But even putting aside the U.S.’s opposition to the ICC (unreasonable here I believe), it has offered plausible arguments that an ad hoc tribunal would be better here. One of the best arguments is put forth by State Department spokesman Richard Boucher here (via Jurist):

The [UN Panel] in its reporting on these atrocities, details crimes that took place in 2001 and 2002. Those crimes predate the establishment of the International Criminal Court and therefore predate — that therefore the court wouldn’t have jurisdiction over those crimes. So you have all the crimes of 2001 and 2002 that couldn’t be handled by the International Criminal Court because of the way its statute reads, whereas a tribunal in Africa could deal with all the crimes that have been committed in Darfur from the beginning.

This makes sense to me and makes me wonder why the UN Panel recommended the ICC. But then, turning to the UN Panel report section explaining why it supports the ICC and not an ad hoc tribunal.

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.

That’s not precisely true, as the UN’s own report details some alleged war crimes involving hundreds of people that occurred prior to 1 July 2002. It is true the majority of the crimes occurred after the 1 July 2002 date, but technically speaking, the UN Panel’s claim about its own findings is less accurate than the State Department’s. All of this suggests the UN Panel was playing a little politics, trying to force the U.S. to work with the ICC on a matter the U.S. obviously cares about more than other members of the Security Council.

What’s the lesson from all of this? None of the key actors here — not the U.S, not Europe, not even the UN’s Panel of experts — are above playing ICC politics with the Darfur question.