New Developments Regarding the ICC and Darfur

The ICL community is abuzz with news that the ICC Prosecutor appears ready to issue new indictments that connect the “whole state apparatus” in Sudan to the crimes against humanity committed in Darfur. Here’s Mark Leon Goldberg:

This is a big deal. On the one hand, indicting top government officials could seriously disrupt current diplomatic efforts to coax and cajole Khartoum into cooperating with the deployment of peacekeepers in Darfur. The international community also needs Khartoum’s cooperation to shore up the separate peace agreement with the south and resolve the conflict in the Abyei region. Another way of looking at this, though, is that current international efforts to bolster UNAMID are already fledgling. Fighting in Abyei has already broken out (causing some 50,000 displaced) the north-south peace accord is already fledgling. This new intervention by the ICC, if it comes, could provide a critical point of political leverage over the political elites calling the shots in Khartoum.

So far, the international community has not been able to convince the Sudanese government that it is in their best interests to cooperate on Darfur, Abyei, and elsewhere. The threat of indictment (and the ability of the Security Council to suspend those indictments) could inject the necessary impetus for the government to finally take a conciliatory stance toward the international community. The problem is, ICC indictments are a relatively new phenomenon on the international stage. Diplomats seem not yet to have quite learned the best way use these indictments to serve their political ends. Here’s hoping they learn fast.

I agree with Mark that this is a big deal. New indictments, particularly of Sudan’s top leadership, will further isolate the murderous regime in Khartoum. I’m less sanguine, however, that they would encourage the Sudanese government to take a conciliatory stance toward the international community. It seems to me that the opposite is true — that Sudan will simply ignore the new indictments and continue to level its ridiculous allegations of political bias against the ICC. That doesn’t mean the Prosecutor’s intended actions are ill-advised; on the contrary, Sudan’s patrons, particularly China, may well find it more difficult to support the Sudanese government if all or most of its top leaders are indicted — a worthy and necessary outcome. But we shouldn’t have any illusions about how the Sudanese government will react.

Another aspect of the Prosecutor’s recent statements are worth noting — namely, that he is also considering whether to bring genocide charges regarding Darfur:

The international criminal court (ICC) is refusing to dismiss the possibility of genocide in Sudan’s wartorn Darfur region, its chief prosecutor has said.

Chief prosecutor Luis Moreno-Ocampo made the claim in a briefing to MPs and peers in parliament 15 months after the ICC named Sudan’s humanitarian affairs minister, Ahmed Haroun, and Ali Kosheib, Janjaweed leader, as chief suspects of war crimes against humanity in Darfur.

Mr Moreno-Ocampo said he had established a “clear case” against the two suspects based on crimes against humanity.

“We never dismiss genocide”, he explained, adding that a “second investigation” is currently underway considering this “second aspect” of the Darfur crisis.

This is a huge deal, and I’m mystified as to why it has not received more media attention. NGOs and some governments, particularly the US, have long claimed that the Sudanese government’s actions in Darfur amounted to genocide. Nevertheless, the Security Council-sponsored Report of the International Commission of Inquiry on Darfur specifically rejected that conclusion (though it did say that individual government officials and janjaweed militiamen might have acted with genocidal intent):

The Commission concluded that the Government of the Sudan has not pursued a policy of genocide. Arguably, two elements of genocide might be deduced from the gross violations of human rights perpetrated by Government forces and the militias under their control. These two elements are, first, the actus reus consisting of killing, or causing serious bodily or mental harm, or deliberately inflicting conditions of life likely to bring about physical destruction; and, second, on the basis of a subjective standard, the existence of a protected group being targeted by the authors of criminal conduct. However, the crucial element of genocidal intent appears to be missing, at least as far as the central Government authorities are concerned. Generally speaking the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds. Rather, it would seem that those who planned and organized attacks on villages pursued the intent to drive the victims from their homes, primarily for purposes of counter-insurgency warfare.

I think the Commission’s report is very convincing, so it will be interesting to see whether the Prosecutor has been able to develop new evidence of a genocidal policy. Unless he has, any attempt to charge the Sudanese government with genocide will make it seem like he is simply giving in to western political pressure — a result that, however unjustified, would further damage his already shaky reputation for independence.