Behind the Scenes of the Darfur Referral — and Thoughts on the ICC’s “Gravity” Requirement

by Kevin Jon Heller

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”?

21 Responses

  1. 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”?

    …a tendency that has not been overlooked in some circles. I believe had some discussion on the issue a while back.

  2. Professor Heller,

    As you know, one of the U.S.’s primary objections to the ICC has always been that the Prosecutor is somehow “unchecked.” Proponents of the ICC have generally responded that the Prosecutor, per the terms of the Rome Statute, should only bring cases for gave breaches of IHL etc. According to this argument, the gravity requirement prevents politically motivated prosecutions.

    With all due respect, your argument would basically eviscerate this check on the Prosecutor. Frankly, it’s hard to see how the Prosecutor’s choice of “symbolic” prosecution would not turn into politically motivated prosecution.

    Take, for example, a single IHL violation by a US soldier that somehow falls under the ICC’s juridiction (say it happened on a signatory state). There was only one victim (say a young Muslim girl), but the media and the world have focused on this case. Seems to me, this would fit snuggly into your symbolic category. At the same time, can you really argue that this is what was intended when the Rome Statute was signed …

  3. Professor Heller,

    God forbid an international body actually prioritize and focus on some of the worst atrocities. The ICC’s stance is refreshing. I guess the record and stances of the UN human rights commission is more to your liking.

  4. NewStream Dream,

    So counting bodies is, in your opinion, the only non-political criterion of gravity? I think many people would disagree. It is absolutely true that the Prosecutor should only pursue “serious” cases, such as those involving grave breaches of IHL. But, of course, killing and torturing POWs both qualify. So how would it be “politically motivated” to prosecute a Coalition soldier who commits such a breach — unless, of course, we once again fall back on the position that only the number of bodies matters?

    It has always been my belief that the US opposes the ICC because it worries that the Court will pursue baseless charges against US soldiers. It’s interesting to learn that opponents would consider a prosecution to be “politically motivated” even if it involves a guilty soldier…

  5. Humble Law Student,

    As with NewStream Dream, I take issue with your willingness to uncritically equate “worst” with “most bodies.” To be sure, counting the dead is easier — and in that sense more “objective.” But your logic leads to absurd consequences.

    Let’s assume, for example, that the ICC’s temporal jurisdiction included Operation Condor, which involved the systematic murder, torture, and disappearance of thousands of innocent people by right-wing military governments in Latin America. The number of Operation Condor’s victims is most likely less than 10,000 — which means that, according to your definition of “worst,” it would be unacceptable for the ICC to prosecute one of the Operation Condor’s architects instead of a low-ranking official in an African government whose atrocities number in the tens or hundreds of thousands. (Especially since the number of victims of any individual Operation Condor defendant is likely to be much smaller.) A decision not to prosecute Operation Condor might be objective — in that, again, it is always easier to count bodies — but I fail to see how it would not be equally political.

    You may respond to this hypothetical by saying “well, certainly thousands of victims is ‘grave’ enough to justify prosecution.” So what number is too small? 5,000? 1,000? 100? And if we start deviating from your “objective” counting of bodies, what “non-political” criterion do you propose we use to prioritize ICC prosecutions?

    Your thoughts?

  6. Professor Heller,

    Thank you for your response.

    First, in my defense, I did not equate “worst” with “most bodies.” Nevertheless, I do assume that the “most bodies” will comprise some of the “worst.” Surely, the number of bodies is, at the very least, a significant factor in determining the “worst.”

    Second, let’s talk about your “qualitative assessment” idea. To start off, when would the “symbolic importance” of a crime arise? For exmaple, in Africa, few seem to care if a several Africans die. Sure, no one wants them to die. But almost no one gets very upset out it. Heck, it takes thousands of deaths, if not more, for the international community to even notice it. And when it does occur, many nations of the UN equivocate, excuse the actions, or just plug their ears in denial–ala the Sudan and a hundred other places.

    So, it is unlikely crimes of symbolic importance would arise in Africa–outside of someone killing Nelson Mandela. But, where would they arise? More importantly, what crimes or actions has the international community deemed worthy of their attention?

    Look, for example, to the eggregious record of the former UN human rights commission–an utter laughingstock. They refused to allow Israel to sit on the commission. The worst human rights offenders were allowed on. They focused primarily on Israel, while the many, many other human rights violators were mostly ignored–some even rewarded by their positions on the Commission. The general assembly has a similarly bad record. How are those for “qualitative assessments”?

    In other words, “symbolic importance” and “qualitative assessment” all too often mean condemning the United States and Israel.

    Your only argument in defense is a completely dissatisfying. You must say, “Well, the symbolic importance of a crime is the importance placed on it by others.” And we all know how that turns out. Our crimes are only important because its the mallet used to bash the “Great Satan.”

    Your attempt to get at symbolic importance and qualitative assessments (including your example) are only rhetorical cover for the “worst” human rights violators to divert attention from their own monstrous activities to our own–quantitively much lower and, as indicated, I would reject your argument of their “qualitative” degree.

    Now, I am not assigning you any ill motive–and I don’t mean to imply any. It is just that we have been down this road far too often. I am still young, but already I am extremely sick and tired of it.

  7. Humble Law Student,

    So unless we count bodies, we will only be interested in conducting witch-hunts against the U.S. and Israel? And I thought I was cynical!

    There isn’t much I can say to someone who believes that any criticism of the U.S. or Israel is simply “rhetorical cover for the ‘worst’ human rights violators to divert attention from their own monstrous activities.” I do note, though, that you have simply evaded my question. If you now say that body counts are only a “significant” factor in determining the worst atrocities, what are the other factors? Are they objective and non-political? When is it okay to investigate crimes that don’t lead to the highest body counts? Whenever the investigations aren’t directed at the U.S. or Israel, because by definition any non-quantitative assessment that led to an investigation of the U.S. or Israel would be unfounded?

    I’d also point out that my post was about the ICC, of which neither Israel nor the U.S. is a member. So, of course, your paranoia is even more misplaced — unless the U.S. or Israel commits a war crime or crime against humanity on the territory of a State Party, the ICC will never have jurisdiction over them. But why let a little thing like that get in the way of a good global conspiracy theory?

  8. Sorry Professor Heller, but the temptation is too much for me. In your comment to Humble Law Student, you say

    A decision not to prosecute Operation Condor might be objective

    And to New Stream Dream

    It has always been my belief that the US opposes the ICC because it worries that the Court will pursue baseless charges against US soldiers.

    Lets take Operation Condor. 1976, Washington DC, Embassy Row bombing that killed Chilean former Foreign Minister, Orland Letelier and his assistant Ronnie Moffitt, a US citizen.

    George H Bush and his CIA covered up by providing false leads:.

    For instance, in 1976, Newsweek carried a false story from the CIA, clearing the government of Chilean dictator Augusto Pinochet of responsibility for a terrorist attack on Massachusetts Avenue in the heart of Washington’s Embassy Row.

    As for the the participation of the military:

    On March 6, 2001, The New York Times reported the existence of a recently declassified State Department document revealing that the United States facilitated communications among South American intelligence chiefs who were working together to eliminate left-wing opposition groups in their countries as part of a covert program known as Operation Condor

    Us opposes the ICC because it fears that it should bring charges against high US officials (both military and civilians).

  9. Cruz del sur,

    I’m genuinely unsure what your point is. I completely agree that the U.S. was a witting accomplice to Operation Condor. But what does that have to do with my point that if we simply count bodies, “small” atrocities like Operation Condor will go unpunished?

    I also agree that the US opposes the ICC because it fears having its officials and soldiers prosecuted. My point was that I was being too generous to the conspiracy theorists: they are not simply concerned about baseless prosecutions, they are opposed to meritorious ones, as well. (Who knew that Jane Meyer was actually working for the Axis of Evil?)

  10. Professor:

    Like I said, the temptation was to great (not to take a swing at those who I believe planned Operation Condor i.e. the US,)

    Even in cases where Americans were brutally killed, and therefore this country should seek to have those responsible tried, it still refuses to do anything about it. Not in the ICC nor in domestic courts.

    Please forgive me if I derailed you discussion, but I really can’t help myself when it comes to these subjects.

  11. Cruz del sur,

    Feel free to weigh in at any time. You identify what irritates me most about the global conspiracy theorists: namely, their insistence that America does nothing wrong, ever, and that any allegation to the contrary is simply politics. To be sure, the U.S. is — like Israel — often baselessly demonized by countries that have far worse human rights records. But that fact — which it is important to emphasize — cannot and should not divert attention from the legitimate criticisms of the U.S., such as black sites, Gitmo, extraordinary rendition, etc. Indeed, that is the worst thing about the baseless accusations: they give ammunition to those who, like NewStream Dream and Humble Law Student, refuse to believe that U.S. officials and soldiers are ever capable of committing international crimes.

  12. “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”

    Not necessarily so …. A number of British forces are presently being prosecuted for i.a. war crimes by courts in England under domestic ICC legislation. This approach, putting into effect the principle of complementarity, has been favoured publicly by the ICC prosecutor who sees the ICC for state parties as a court of last resort. The ICC prosecutor cannot as such investigate these cases as the UK is willing and able to prosecute crimes falling covered by the ICC statute. Thus the decision has much less to do with pro western policy and number of victims….

  13. I don’t think the evidence would bear any prosecutions of US officials in Operation Condor. Those documents so far obtained show little US involvement in the operation.

    As for my opinion, yes, I believe ICC prosecutions should be prioritized by body count. As a measure of severity of crimes, it is both an important and, frequently, an easy to measure metric.

  14. Hi Matthew.

    Actually, the evidence is there. Lets take the Southern Command allowing the use of radios to coordinate Operation Condor. If I am correct, that is “prestation for the commission of a crime”. In a conspiracy to commit murder, it carries the same penalty.

    I guess this site has plenty of legal experts to contradict me, so I will leve it up kto them to refute my claim.

    As for the Embassy Row bombing (which by the way was called the worst terrorist bombing in the US until, I guess, Oklahoma), the evidence indicates that they covered up, and they obstructed justice.

    Lets not even mention that US officials ( State Department and the CIA) had prior knowledge that Condor members were to carry some action inside the US because Paraguay had warned them.

    Or for example

    Convicted for the assassination in US trials spanning 1978-1990 were DINA agent Michael Vernon Townley, born in the US, Chilean Army Captain Armando Fernandez, and two anti-Castro Cuban exiles. Townley built the bomb that killed Letelier and Moffitt, while the Cubans he enlisted detonated it. The Cubans had prior histories of terrorist activities, often under the employ of the CIA.

    Although I can not provide you with a link, you can research these two facts in the NYT: Manuel Contreras (who was a payed CIA asset) accused GH Bush (who was the DCI at the time) of acting on his orders. he did so once before he was convicted (BTW in Chile, and had no jurisdiction for a crime that occured in the US!!!) once before he was convicted, and once while he has serving his sentence (in a military barrack of course)However the most damaging I blieve to be the third time he accused him because he was already free ( This quote was published by Chilean newspaper “El Mercurio”)

    This is by no means over yet. The real evidence is still classified bur sooner or later it will come out:

    One of the most important things about the documents, however, is what is missing from them. It is widely believed that the United States has additional key documents that would help resolve ongoing legal battles concerning responsibility for acts of terrorism that took place on behalf of the Pinochet dictatorship in Chile and around the world, including the United States. U.S. officials, however, continue to refuse to declassify or share with prosecutors in other countries these key documents.

    What really shocks me is the willingness to so easily ignore right wing terrorism even when it has claimed Americans lives.

    Finally to finish this, I have already stated that I was born in Argentina. I am not sure that I have mentioned that I do have dual citizenship. Both my parents were US citizens, and Dad was a member of the intelligence family. Although one of the cental duties of the State Department is to protect Americans abroad, they never warned us. Those who werer in those key positions at the time (Nixon, Ford, Bush and Kissinger) do have American blood in their hands.

  15. One more thingMichael Townley is an American Citizen. Several times he claimed he was a CIA Agent. The CIA said he was not. For what I can gather he was a NOC, or no official Cover agent. The CIA will never recognize him as a member of the Agency. But here is another conexion to Condor

  16. To those who support the body count, let me present you with an hipothetical: imagine that a country captures bin Laden, and refuses to turn him to the US because of Gitmo, and intead it wants the ICC to prosecute bin Laden. Should the ICC refuse because “only” 3000 people were killed???

  17. Professor Heller,

    Regarding your quote:

    “like NewStream Dream and Humble Law Student, refuse to believe that U.S. officials and soldiers are ever capable of committing international crimes.”

    It really pains me to see that someone who is paid to be a Professor can do no better than merely distort the other sides’ position. At no time have I, or Humble Law Student for that matter, ever said that U.S. officials never committ international crimes. At least have the intellectual integrity to accurately state someone else’s position. You are a Professor, act like one.

    As far as the merits, both you and Cruz del Sur merely make slippery slope arguments. The 3000 deaths on 9/11 are a grave breach of IHL. One death would not be. We can argue if numbers inbetween would be considered grave, but that does not defeat the fundamental argument that, consistent with the text and negotiating history of the Rome Statute, objective factors such as number of victims are suppose to be the relative comparator while the “symbolic importance of crimes” should not be.

    Let me ask you a question, we can all agree that 2PM is daytime and 9PM is night-time. The fact that 5:30PM may be on the borderline between night and day does not defeat the fact that night and day exist and are distinct concepts. There is a night, there is a day, there are grave breaches of IHL, there are non-grave breaches.

  18. NewStream Dream:

    So, 3000 are a grave breach but 1 is not. How about 81? would that be a grave breach?

  19. NewStream Dream,

    I don’t recall claiming that an act involving one victim would be a grave breach — although, of course, it would. You are simply eliding the difference between a “grave breach” and international crimes “grave” enough to satisfy the Court’s admissibility criteria.

    I do recall asking you for some criteriion other than your personal moral sensibilities that we can use, in the absence of counting bodies, to determine the gravity of a case. Instead, you respond with… your personal moral sensibilities. And they are revealing indeed: the only situation you offer that would justify deviating from “objective” body counts (and by all means, point us to where in the drafting history that was discussed as the basic criterion for “gravity”) in favor of “symbolic” criteria is 9/11. Not Operation Condor, which involved far more victims, hundreds if not thousands of perpetrators, and seven or eight governments. I will leave it to our readers to infer from that what they will.

    I will confess that, in my frustration with your unwillingness to offer a defense of your position — instead simply assuming that you alone know how to avoid sliding down the slippery slope — I overstated your position. I apologize for that. What I should have said is that you have never seen an international crime committed by U.S. officials or soldiers for which you believe they should be prosecuted by an international court. Is that more accurate?

  20. I would like for someone tell me that these 81 souls was not a grave breach. Or these 4 weren’t also (read thier story, and look at their photos) such an attrocious breach.

  21. Professor Heller,

    I am sorry for the misunderstanding that I caused, but my comments have been directed at admissibility. Just to be clear, I think you could have a grave breach (and a war crime) that is not serious enough to justify the ICC taking jurisdiction (assuming admissiblity is a jurisdiction requirement). I hope that clears up the confusion, but I still contend that the seriousness admissiblity requirement should be based on objective factors with a body count being the best, most obvious choice.

    Lastly, I appreciate your apology. I understand your frustration. Understand that I get frustrated because I feel like you constantly paint me, and others like me, as some pro-Bush neocon just because I am not as liberal as you. Of course I think America has done terrible things, in fact I wish we had NZ’s farm policy (to name by least favorite American foreign policy). However, I don’t think America is the great threat to world peace that so many believe. I lay that mantle on militant Islam. My evidence, there is no where in the world where Islam and non-Islam exist in harmony, but the US has two of the most peaceful borders in the world.

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