Behind the Scenes of the Darfur Referral — and Thoughts on the ICC’s “Gravity” Requirement
Peggy and I have noted the seeming thaw of late between the Bush administration and the ICC, citing as Exhibit 1 the US decision not to veto the Security Council resolution referring the situation in Darfur to the Court. We might have spoken too soon — according to documents obtained via FOIA by Mark Leon Goldberg, who writes about Darfur regularly at UN Dispatch, the U.S. did everything it could to derail the referral (hat-tip: The Washington Note):
The documents I’ve obtained detail the administration’s headstrong reaction to a potential Security Council vote on an ICC referral for Darfur.
In early January 2005, upon learning that Cassese was to recommend ICC referral, UN Ambassador Jack Danforth sent a cable to Washington asking for instructions. The cable, addressed to Secretary of State Rice, recounts a meeting Danforth held with French Perm Rep Jean-Marc de la Sabliere (and an individual whose name is redacted.) Danforth was informed by de la Sabliere that France would, in fact, take up Cassese’s recommendation. Danforth, therefore, asked Rice for some direction: should the US seek to A) block the ICC referral all together, or B) simply carve out US exemption (that is, insert language into the resolution that would grant immunity to any Americans that might be somehow be caught up in the investigation.)
Danforth recommended the later course, saying that doing so would make life easier for everyone. His advice was not heeded. Rather, for the next three months, the US sought to block a resolution giving jurisdiction to the ICC, because in the words of a cable from Foggy Bottom “we do not want to be confronted with a decision on whether to veto a court resolution in the Security Council.” In place of the ICC, the United States proposed creating an alternate “accountability venue” that would be an African Union-United Nations hybrid court that would prosecute Darfur’s war criminals using the facilities of the International Criminal Tribunal for Rwanda.
I followed this story closely at the time, but until I read these cables I had no idea the lengths to which the administration was willing to go in pursuit of this alternate option. Rice directed the US mission to the UN to “position ourselves to table our text before any other member formally proposes language seeking accountability through the ICC.” But the Europeans did not confuse first with best. EU members of the Security Council held firm against the AU-UN hybrid option, so the administration sought to circumvent them.
“The proposal might gain momentum…if the Africans supported it,” reads one cable. Pierre-Richard Prosper, the US Ambassador at Large for War Crimes Issues, traveled to Africa to press AU member states to agree to the American proposal for a hybrid, AU-UN court. Prosper delivered talking points and a so-called “concept paper” about the hybrid option to the president of Senegal, who was to travel to Chad to discuss it with regional powers like Nigeria and South Africa during an AU summit on Sudan.
The talking points Prosper delivered show real desperation. One point says the hybrid court would be less costly than the ICC — which was a point the Europeans strenuously denied. (Further, the Europeans countered that they would not agree to fund the hybrid court when they are already paying dues to the ICC). Also, the talking points argue that the ICC is a lesser option because it cannot prosecute crimes prior to 2002. (Never mind that the fighting in Darfur did not break out until 2003-2004.) Finally, as if the ICC were some European plot against Africans, one point cynically says “so far the only referrals have related to activities in Africa.”
The administration had hoped that Senegal would convince other AU member states of the wisdom and utility of the hybrid option. Alas, this effort to failed. On March 31, 2005, the United States abstained from resolution 1593, which gave the ICC jurisdiction to investigate crimes in Darfur. The US sought — and won — exception from the ICC as was originally counseled by Danforth. In the meantime, three months of diplomacy were needlessly wasted as the US pursued the hair-brained hybrid option.
When people say that the international response to Darfur has been slow, you can point them to this anecdote.
It’s interesting to note that the U.S. did not oppose prosecuting the architects of the Darfur atrocities in an international court. It simply wanted to avoid legitimizing the ICC.
I will say, though, that Prosper’s point about the referrals has some merit. The Prosecutor’s single-minded emphasis on investigating situations in Africa is indeed troubling — and could eventually undermine the legitimacy of the Court. The problem is that the Prosecutor interprets the Rome Statute’s general “gravity” requirement extremely narrowly, as involving little more than an exercise in counting the number of victims of war crimes or crimes against humanity. That quantitative interpretation of the gravity requirement naturally leads the Prosecutor to focus on Africa, where some of the world’s worst atrocities have occurred since July 1, 2002, when the Rome Statute entered into force.
Nothing in the Rome Statute, however, requires the gravity of crimes to be assessed quantitatively. A qualitative assessment — one that takes into account the symbolic importance of crimes, not simply the number of victims they produce — is equally defensible. Such an assessment would allow the Prosecutor to investigate situations that may not lead to piles of bodies, but clearly and directly threaten the integrity of international humanitarian law. The war crimes committed by (non-US) Coalition forces in Iraq are a good example: the Prosecutor acknowledged that those forces have committed the war crimes of wilful killing (Article 8(2)(a)(i)) and torture or inhumane treatment (Article 8(2)(a)(ii)), two of the worst war crimes imaginable. A decision to investigate the situation in Iraq — an investigation that would likely have focused on British soldiers — would have done far more to dispel the image that the ICC is simply a Western court created to prosecute non-Western crimes than any number of Court-organized outreach seminars.
No such investigation, of course, was ever initiated — for the simple reason that the Coalition’s war crimes and crimes against humanity didn’t create enough victims, at least in comparison to the same crimes committed in Africa:
The Office considers various factors in assessing gravity. A key consideration is the number of victims of particularly serious crimes, such as wilful killing or rape. The number of potential victims of crimes within the jurisdiction of the Court in this situation – 4 to 12 victims of wilful killing and a limited number of victims of inhuman treatment – was of a different order than the number of victims found in other situations under investigation or analysis by the Office. It is worth bearing in mind that the OTP is currently investigating three situations involving long-running conflicts in Northern Uganda, the Democratic Republic of Congo and Darfur. Each of the three situations under investigation involves thousands of wilful killings as well as intentional and large-scale sexual violence and abductions. Collectively, they have resulted in the displacement of more than 5 million people. Other situations under analysis also feature hundreds or thousands of such crimes.
With such a myopic emphasis on body counts, is it any wonder the ICC is often derided — cynically, but not inaccurately — as the “African Criminal Court”?