Can the ICC Prosecute Those Responsible for Darfur?

Two weeks ago, the Chief Prosecutor of the ICC, Luis Moreno-Ocampo, briefed the Security Council on the results of his investigation into the situation in Darfur. Not suprisingly, he found the widespread commission of war crimes and crimes against humanity:

Moreno-Ocampo also noted that his investigation will likely result in multiple ICC prosecutions of those responsible for the events in Darfur:

Identifying those individuals with greatest responsibility for the most serious crimes in Darfur is a key challenge to the investigation. The complexity of the conflict in Darfur exacerbates this challenge, given that it involves multiple parties, varying over time throughout the different states and localities, which are not easily distinguished by uniform or insignia. Given the scale of the alleged crimes in Darfur, and the complexities associated with the identification of those individuals bearing greatest responsibility for the crimes, the Office currently anticipates the investigation and prosecution of a sequence of cases, rather than a single case dealing with the situation in Darfur as a whole. The selection and progress of these cases will be based on the best possible evidence available to the Office at the relevant time. As soon as the Office gathers sufficient information to meet the evidential standards in the Statute, then that information will be presented to, and assessed by, the judges at that time.

Needless to say, the Sudanese government is unhappy with Moreno-Ocampo’s desire to prosecute its nationals. Indeed, the government believes that the ICC has no jurisdiction over Sudanese who committed war crimes or crimes against humanity in Darfur, because it is willing and able to prosecute them itself in its year-old Special Criminal Court on the Events in Darfur:

“If they are here to discuss the progress of trials or the role of national justice then we are ready to give them whatever information they are looking for,” said Sudan’s Justice Minister Mohamed al-Mardi. “But if the matter is about investigations, then they … don’t have the jurisdiction.”

The dispute between the ICC and the Sudanese government centers on Article 17 of the Rome Statute, which provides, in relevant part, that “the Court shall determine that a case is inadmissible where… [it] is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.” Is the Sudanese government genuinely “willing and able” to prosecute those responsible for the atrocities in Darfur?

According to Human Rights Watch, the answer is a resounding “no”:

• The procedure and laws to be applied by the Court are far from clear and the hybrid of Sudanese statutes, shari’a law, law by decree and references to international law which could be applied make the Court’s work opaque and arbitrary.

• The absence of explicit definitions in Sudanese law of crimes against humanity and violations of international humanitarian law makes it less likely that these crimes will actually be prosecuted in an appropriate manner.

• No provisions exist for prosecuting leaders on the basis of command responsibility.

• Reliance on ordinary criminal law means that local, state or national leaders are unlikely to be held accountable for the acts of their subordinates unless direct involvement of the leaders in the crimes can be demonstrated. Prosecution of leaders is essential to enforcing accountability in Darfur.

• Broad immunity provisions in Sudan’s laws create obstacles to successfully prosecuting members of the armed forces (including the Popular Defense Forces and some Janjaweed), national security agencies and police, for their role in the events.

• The high burden of proof for rape cases, as well as the threat of prosecution for adultery, makes it difficult for rape victims to bring their cases to the police.

• Sudanese law raises serious concerns about the ability of the courts to conduct trials consistent with international fair trial standards. For example, Sudanese law does not provide an absolute prohibition on admission of statements obtained as a result of torture.

• Demonstration of the lack of political will to take these cases begins at the lowest levels. Police often refuse to take complaints from victims and do not investigate cases brought to them.

Human Rights Watch thus concludes that “[w]ithout a reversal of policy on the part of the Sudanese government and political will to punish past atrocities and prevent further crimes, the Sudanese government cannot be said to have demonstrated ability and willingness to establish accountability for the crimes in Darfur.”

In cases involving high-ranking government officials, military commanders, and members of the pro-government Janjaweed militias, Human Rights Watch is clearly correct, for all the reasons its report mentions. The situation is more complicated, however, in cases involving defendants whom the Sudanese government doesn’t want to protect, such as scapegoated low-level government officials and soldiers and members of rebel groups like the SLA and JEM. Sudan is more than willing and able to investigate and prosecute those nationals (and has recently issued a special decree making international humanitarian law applicable in its criminal courts) – it simply has no intention of protecting their rights while doing so. Indeed, as Human Rights Watch notes elsewhere in its report, not only do Sudan’s criminal courts allow confessions obtained through torture, trials are often held in secret, defendants are regularly denied the right to counsel completely or are required to be represented by “friends” instead of lawyers, and the presumption of innocence is regularly ignored.

The question regarding rebels and scapegoats, then, is whether the absence of due process in Sudan’s criminal courts permits the ICC to assume jurisdiction over their cases. Human Rights Watch seems to believe that it does.

I respectfully disagree. As I explain at length in my article “The Shadow Side of Complementarity,” which will appear later this year in Criminal Law Forum, nothing in the text, context, object, or drafting history of Article 17 supports the idea — almost universally embraced by international criminal law scholars — that the absence of due process protections for a defendant renders a State “unwilling or unable” to genuinely prosecute. On the contrary: as long as a State denies a defendant due process in order to make him easier to convict, the ICC must defer to the national prosecution no matter how unfair it might be.

The entire argument is too lengthy to recount here. For those interested in the topic, my article — which concludes by arguing that the Rome Statute should be amended to make the absence of national due process a ground for admissibility — is available on SSRN here.