- The Washington Times - Thursday, February 3, 2005

The ongoing massacres in Sudan’s Darfur region present a humanitarian emergency of the highest order. As many as 50,000 people have been killed and 1.4 million displaced. Although the United States has called these atrocities “genocide,” the United Nations has refused to accept this characterization, and, largely due to French, Russian and Chinese opposition, it is unlikely that the Security Council will impose meaningful sanctions against the Sudanese government or authorize the use of force.

Absent a “unilateral” humanitarian military intervention by the United States, Darfur’s last hope appears to be a referral of the matter to some international judicial body capable of prosecuting and punishing the men responsible. Otherwise, the lessons of Rwanda will have been lost, and the world will have ignored yet another genocide in Africa. The question, however, is which tribunal.

Our European allies, supported by the recent report of a U.N. commission, want the newly established International Criminal Court (ICC) to undertake the responsibility. The other candidates are a “mixed” national/international tribunal along the lines of the Special Court for Sierra Leone, and a reformed version of the U.N.’s ad hoc International Criminal Tribunal for Rwanda (ICTR). There are drawbacks associated with each of these options, but the third probably presents the best opportunity for immediate action in Darfur, and acceptance in the region.

In principle, of course, a mixed tribunal like the Sierra Leone court, which was jointly established in 2002 by the United Nations and that country’s government, is preferable. This model preserves the relevant state’s sovereignty, but also provides for international participation and assistance. In addition, it ensures that justice will be carried out in the context of the society from which both the victims and perpetrators came. Unfortunately, a mixed court cannot work in Darfur, since the Sudanese government has itself been implicated in the killings there.

The next best option is to have the Security Council vest authority to investigate and prosecute the Darfur offenses in a reformed ICTR. Although this court has had a troubled history, including problems with inefficiency and corruption, it is a well-established regional institution — headquartered in Arusha, Tanzania — and has made improvements. It is experienced in investigating and processing genocide allegations, and could begin work immediately.

Moreover, rather than a simple referral, the Security Council would be able to institute additional reforms, and can also direct the ICTR to work closely with the African Union (AU). The AU is a highly respected regional organization, and it already has personnel deployed in Sudan. Most importantly, even if flawed, an ICTR referral would avoid the air of “colonialism” that would clearly arise if the ICC were tasked to do the job.

The ICC is first and foremost a European experiment. It is headquartered in The Netherlands, and the European Union (EU) controls 25 of 97 votes in its assembly of state parties. The EU has, in fact, set itself the task of achieving “universality” for the court, and is the ICC’s chief international proponent. Moreover, both of the ICC’s current investigations involve African countries, the Democratic Republic of Congo and Uganda, respectively. Adding Darfur to this list begins to look a very great deal like European justice for African defendants.

Another critical drawback to referring Darfur to the ICC is that the United States has rejected that institution for itself, and there are significant unsettled issues over the court’s sweeping jurisdictional claims. In particular, the ICC asserts the right to try American citizens, with or without a Security Council referral, who are accused of “war crimes” and similar offenses in the territory of ICC member states. This represents a delegation of national judicial authority not recognized by international law, the only precedents being the thoroughly discredited “capitulations” imposed on Turkey and China in the 19th century, and which cannot properly be accomplished by treaty. Both President Clinton and President Bush, in turn, correctly rejected the ICC’s extravagant jurisdictional claims.

As a result, before the United States should even consider a Security Council ICC referral, both the ICC and EU would have to agree that the action creates no precedent, either at the U.N. level or as a matter of customary international law. Although similar compromise language was actually included in the documents creating the U.N. ad hoc tribunals, acknowledging that these courts could not “make” international law, there appears to be little chance that either the ICC or its European sponsors would accept such terms now. However, the costs to American interests of going forward without such an agreement would be prohibitive. As a result, a reformed ICTR offers the best chance of some immediate action in Darfur.

David B. Rivkin Jr. and Lee A. Casey served in the Justice Department under Presidents Reagan and George H.W. Bush.

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