Thursday, September 21, 2006

Sudan and the International Criminal Court

It now seems that the 7,000 strong African Union force in Darfur will remain in the Sudan with additional UN support and equipment until the end of the year.

However, it remains a "central plank of Sudan's foreign and domestic policy" to reject an expanded UN presence. Partially, this may be to allow the Sudanese government to pursue a military solution in the Sudan, unhindered by a larger, better-funded UN force with more robust rules of engagement.

In a particularly cheap ploy Sudanese President Omar al-Bashir has suggested that the UN has a colonial agenda, when it is quite clear from the text of the UN Security Council Resolution that any peace-keeping force will only be deployed with Sudan's consent.

The disingenuous nature of the claim is further belied by the fact that Sudan has already admitted 10,000 UN peacekeepers in the South.

Are Sudan's leaders just making political capital from the UN and stalling for time to finish what they've started? Doubtless, but there may be other considerations at play.

As international lawyers, we are often reluctant - as David Kennedy has pointed out - to face up to the idea that our high ideals may have unintended consequences.

The International Criminal Court has been requested by the UN Security Council to investigate whether to lay charges for crimes against humanity against persons involved in the Sudanese civil wars.

The Sudanese government has taken this development seriously enough to establish its own war crimes court, presumably in an effort to block ICC jurisdiction.

The ICC has jurisdiction over crimes of individual responsibility at international law (where the territorial State is unwilling or unable to prosecute them, unless the UN Security Council grants it broader powers).

Critically, the UN Secretary General has warned the Sudanese leadership "may be held collectively and individually responsible for what happens to the people of Darfur if they allow the African Union (AU) mission there to leave and then refuse access to United Nations peacekeepers".

It's not much of a leap to conclude that the Sudanese President is not entirely off-base in:
... liken[ing] the prospect [of U.N. force deployment] to an invasion force whose goal is regime change. Analysts say the government in Khartoum fears U.N. forces would arrest suspects likely to be named in any war crimes warrants issued by the International Criminal Court.

I want to be very clear: I am a supporter of the ICC. I believe it has a potentially important role to play in ensuring that there is individual accountability for crimes against humanity. However, when referring an investigation to the ICC is used a substitute for taking real and effective action, we risk making things worse, not better.

Anyone who though an ICC investigation was necessary to establish crimes against international law are being committed in the Sudan clearly did not have a newspaper to hand. The referral was clearly a political act. (I am not, however, suggesting the ICC's investigations are anything less than rigorous and impartial.)

International law will not prevent violence and death in Darfur any more than criminal law prevents murder within our own countries. Only policing will. The only way to get a policing force into the Sudan is negotiation (especially as western powers seem to lack the stomach for a hard-line military deployment that really would be tantamount to an invasion force bent on regime change).

It's very difficult to negotiate with someone once you've initiated an independent prosecution against them and theirs. Legal prosecution makes a poor political bargaining chip because once initiated, it's hard to call off.

Referring the Sudanese "situation" to the ICC was a poor substitute for action that may now make what was always going to be a very difficult negotiated settlement next to impossible.

At best, the Security Council should have sent the ICC in after a peace-keeping force, not ahead of it.

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