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warrant requested on June 25 by the Presecutor and issued secretly by the
PTC on July 2, Congolese authorities turned Mr. Germain Katanga over
to the Court on October 17 for crimes associated with an attack on the
Ituri village of Bogoro on February 24, 2003.109 Katanga was the alleged
commander of the Force de Resistance Patriotique en Ituri (FRPI), a mili-
´
tia that, according to HRW, had ˜˜helped lead one of the largest massacres
in Ituri, that at Nyakunde Hospital in September 2002,™™ and at other
massacres in various locations in 2002 and 2003.110 While hailing
Katanga™s transfer to the ICC, Human Rights Watch and the International
Crises Group nonetheless called upon the OTP to pursue higher govern-
ment of¬cials whose complicity allegedly would have been required for
violence and arms supplies to have continued untrammeled in the Ituri


108
ICC, Luis Moreno-Ocampo, ˜˜Opening Remarks™™ to the Fifth Session of the Assembly of
States Parties (2006).
109
ICC, Pre-Trial Chamber I, ˜˜Urgent Warrant of Arrest for Germain Katanga,™™ ICC-01/04-
01/07-1-US-tENG (September 27, 2007).
110
Human Rights Watch, ˜˜D.R. Congo: Army Should Not Appoint War Criminals:
Congolese Government Must Investigate and Prosecute Warlords, Not Reward
Them™™(2005); ˜˜ICC/DRC: Second War Crimes Suspect to Face Justice in The Hague:
Investigation Should Expand to Include Senior Of¬cials in the Region™™ (2007).
226 Building the International Criminal Court

region.111 Chief Prosecutor Moreno Ocampo indicated that the DRC
investigations were continuing, focused on a third case.112


SUDAN

On March 31, 2005, the United Nations Security Council referred the
Darfur, Sudan, situation to the International Criminal Court.113 For the
Court, it was a momentous event. The referral had been unimaginable only
a few months before, given U.S. opposition and the lukewarm attitudes of
Security Council members China and Russia. For the ICC, this unexpected
Security Council referral was a boon and a threat “ a boon because it
showed that the Court could be an asset to the Security Council; a threat
because without Sudanese cooperation and vigorous assistance from other
countries, the ICC faced major dif¬culties in implementing an investigative
strategy and apprehending suspects.
Four aspects of the ICC™s involvement with Sudan are particularly
salient “ the signi¬cance of the Security Council Resolution for the Court;
the scope of the ICC™s operational capabilities in situations of state non-
cooperation; the continued friction between the Pre-Trial Chamber and the
Prosecutor; and efforts to use the Court to pressure the government, whose
of¬cials were suspected of committing crimes, even as the ICC sought the
government™s cooperation in investigating those same crimes.


Con¬‚ict Background
Long-standing feuds in the western Sudan region over resources, political
representation, and economic development boiled into military confronta-
tions in late 2002 and spring 2003, as two primarily Nilotic, African-tribal-
based groups, the Sudan Liberation Movement/Army (SLM/A) and Justice
and Equality Movement (JEM), attacked local installations and personnel
of the ethnic Arab Khartoum government which the Nilotic Sudanese held
responsible for Darfur™s marginalization. Still extracting itself from a twenty-
year war in the south, the government was slow to react, and then called
upon Arab tribes to ¬ght the rebels. To its summons came the mostly


111
Bibas, Chicon, and Petit, ˜˜Germain Katanga, Second Congolese Transfer to the ICC™™
(2007), 1.
112
UN News Center, ˜˜Congolese War Crimes Suspect Turned over to International Criminal
Court™™ (2007).
113
UN Security Council, Resolution 1593 (2005).
227
The First Situations

nomadic local Arabs who, under the effects of long-term drought, were
seeking land on which to settle.114
The government paid Arab tribal leaders with grants and gifts based on
how many soldiers they provided. Africans who volunteered were appar-
ently turned away as the government selectively enlisted tribes it felt would
remain loyal, including people from neighboring Chad, Libya, and other
states.115 These recruits became the forces identi¬ed by locals and outsiders
as the ˜˜Janjaweed,™™ a term long used in Darfur to describe armed horse- or
camel-mounted bandits.
Several rounds of mediated talks were convened beginning in August
2003, but by the end of the year, Human Rights Watch estimated that
600,000 civilians had been displaced and needed assistance, hundreds of
villages had been burned down, and 70,000 refugees had ¬‚ed to Chad from
attacks mostly perpetrated by the Janjaweed.116
While the Darfur situation was deteriorating, a long-running war
between northern and southern Sudan was ending. In 2004, after more than
two decades of ¬ghting, under pressure from an international community
motivated by humanitarian concern and growing interest in oil discover-
ies,117 the Comprehensive Peace Agreement (CPA) between the (southern)
Sudan People™s Liberation Army and the Khartoum government established
a shaky peace and the prospect of a coalition government in which the
SPLA™s long-time leader, John Garang, became a vice president of Sudan.
The cessation of combat in the south allowed the government to shift
additional attention to the Darfur region, and violence escalated as army
and air attacks were coordinated with the Janjaweed.118 The UN Security


114
UN Secretary-General, ˜˜Report of the International Commission of Inquiry on Darfur to
the United Nations Secretary-General™™ (2005), 24. For background on the con¬‚ict, see
Prunier, Darfur: The Ambiguous Genocide (2007).
115
UN Secretary-General, ˜˜Report of the International Commission of Inquiry on Darfur,™™
op. cit., 24.
116
Human Rights Watch, Annual Report, January 2004, ˜˜Summary of Situation in Darfur.™™
117
Lado, ˜˜The Political Economy of Oil Discovery and Mining in the Sudan: Constraints and
Prospects on Development.™™ Discoveries of oil in the south beginning in 1980 contributed
to the north™s interest in controlling the region and to outsiders™ desire that the con¬‚ict be
settled. Further discoveries in the 1990s and construction of oil pipelines added to
Canadian, U.S., Chinese, and Malaysian companies™ pressure on their governments to help
resolve the con¬‚ict. In 2005, oil was discovered in the Darfur region as well. Gidley, ˜˜Oil
Discovery Adds New Twist to Darfur Tragedy™™ (2005). See also Reeves, A Long Day™s
Dying: Critical Moments in the Darfur Genocide (2007), 138“9, 283“4.
118
UN High Commissioner for Human Rights, Report of the United Nations High
Commissioner for Human Rights and Follow-Up to the World Conference on Human
Rights: Situation of Human Rights in the Darfur Region of the Sudan (2004), para. 6.
228 Building the International Criminal Court

Council, in a ˜˜presidential statement™™ in April 2004, expressed its ˜˜deep
concern about the massive humanitarian crisis™™ in Darfur.119 In June, the
Security Council condemned ˜˜all acts of violence and violations of human
rights and international humanitarian law by all parties,™™120 and in its July
Resolution 1556 (2004), under Chapter VII of the UN Charter, the Security
Council again condemned the violence, declaring the Darfur con¬‚ict
a threat to international peace and security.121
Meanwhile, in June, the U.S. Department of State commissioned a study
of Sudanese refugees in Chad, which was completed in August122 and
repackaged for public presentation.123 On September 9, Secretary of State
Colin Powell testi¬ed to the Senate Foreign Relations Committee, ˜˜When
we reviewed the evidence compiled by our team, along with other infor-
mation available to the State Department, we concluded that genocide has
been committed in Darfur and that the Government of Sudan and the jin-
jaweid [sic] bear responsibility “ and genocide may still be occurring.™™124
At Powell™s urging, the Security Council sought a full report from the
Secretary-General.125 The Secretary-General appointed Italian judge and
Professor of International Law Antonio Cassese to head the commission.
Cassese had been the ¬rst President of the ICTY and is an authority on
the International Criminal Court. His Commission of Inquiry delivered its
176-page report126 on January 25, 2005. It estimated that there were 1.65
million civilian displaced persons in the Darfur region and another 200,000
across the border in Chad, ˜˜largescale destruction of villages throughout
the three states of Darfur,™™ and that
the Government of the Sudan and the Janjaweed are responsible for serious viola-
tions of international human rights and humanitarian law amounting to crimes
under international law. In particular, the Commission found that the Government
forces and militias conducted indiscriminate attacks, including killing of civilians,
torture, enforced disappearances, destruction of villages, rape and other forms of
sexual violence, pillaging and forced displacement throughout Darfur. These acts


119
UN Security Council, Press Statement on Darfur, Sudan, by Security Council President
(2004).
120
UN Security Council, Resolution 1547 (2004).
121
UN Security Council, Resolution 1556 (2004).
122
Goldberg, ˜˜Khartoum Characters™™ (2005).
123
U.S. Department of State,™™Documenting Atrocities in Darfur™™ (2004).
124
U.S. Department of State, ˜˜Powell Reports Sudan Responsible for Genocide in Darfur™™
(2004).
125
UN Security Council, Resolution 1564 (2004).
126
Secretary-General, ˜˜Report of the International Commission of Inquiry on Darfur,™™
op cit.
229
The First Situations

were conducted on a widespread and systematic basis, and therefore may amount to
crimes against humanity.127

In contrast to the government™s claims that its actions were for counterin-
surgency purposes, the commission stated that it found most attacks were
˜˜deliberately and indiscriminately directed against civilians.™™ The rebel
forces were also responsible for serious violations of international human
rights and humanitarian law ˜˜which may amount to war crimes,™™ but there
was not ˜˜a systematic or a widespread pattern to these violations.™™128


Referral
Judge Cassese had been closely involved with the negotiations of the Rome
Statute and its Rules of Procedure and Evidence, and subsequently coedited
a major (2,018 page) commentary upon it. Along with the commission™s
review of conditions in Darfur and characterization of the crimes taking
place there, it considered alternative means to bring suspected Sudanese
perpetrators to justice, such as an ad hoc or hybrid tribunal, but decided,
˜˜The prosecution by the ICC of persons allegedly responsible for the most
serious crimes in Darfur would contribute to the restoration of peace in the
region.™™129
The United States was strongly opposed to the referral and pressed for
alternatives in the weeks prior to the Security Council decision.130 Frank
about U.S. motives, U.S. Ambassador-at-Large for War Crimes Issues
Pierre-Richard Prosper said on January 28, 2005, ˜˜We don™t want to be
party to legitimizing the ICC.™™131 U.S. antipathy to the ICC sailed under the
¬‚ag of reinforcing regional authority. Prosper sought to convince Security
Council members that a Sudan tribunal should be created under African
Union auspices using the facilities of the ICTR in Arusha, thus reinforcing
the AU™s role in the region and economizing on court costs. According to
the United States, the ICC wouldn™t be a good alternative because it
remained remote from the Sudan (in The Hague) and in any case was
preoccupied with the situations in the DRC and Uganda.132


127
Ibid., 3.
128
Ibid., 3“4.
129
Ibid., 5.
130
See also Cryer, ˜˜Sudan, Resolution 1593, and International Criminal Justice™™ (2006),
195“222.
131
Hoge, ˜˜U.S. Lobbies U.N. on Darfur and International Court™™ (2005).
132
Aita, ˜˜African Union Tribunal Proposed for War Crimes in Darfur™™ (2005).
230 Building the International Criminal Court

NGOs, governments friendly to the ICC, and the media piled on to
protest that the United States threatened to sacri¬ce the welfare of hundreds
of thousands of Sudanese, to preserve perpetrators™ immunity, to undermine
principles of justice, and to subvert humanitarian values on the altar of
ideological antipathy to the Court.
On March 31, the Security Council referred the situation to the ICC with
eleven af¬rmative votes, no negative votes, and Algeria, Brazil, China, and
the United States abstaining.133 Acting U.S. Permanent Representative
Ambassador Anne Patterson˜s statement to the Security Council demon-
strated that even though new Secretary of State Condoleeza Rice had
apparently convinced President Bush to take a pragmatic position on the
referral, ICC opponents (such as the soon-to-be-nominated permanent
representative to the UN, John Bolton) had extracted their pound of ¬‚esh in
the form of caveats and conditions that sought to make life harder for the
Court.


The U.S. Position
U.S. ¬ngerprints are all over Security Council Resolution 1593. The reso-
lution announces that all states shall cooperate with the Court under the
UN Charter, while noting that for Rome Statute nonparties, their obligation
arises only from the Charter and not from the Rome Statute.134 It
announced that, other than Sudanese, people from nonparty states involved
in referral-related activities in the Sudan would themselves be subject only
to jurisdiction of their own (˜˜the sending™™) states and not to the ICC unless
they explicitly accepted the ICC™s jurisdiction.135 The Security Council
decreed that none of the expenses of the referral would be paid by the UN,
but would be borne by voluntary contributors and the parties to the Rome
Statute.136
In her statement to the Security Council, U.S. Ambassador Patterson
˜˜strongly supported bringing to justice those responsible for the crimes and
atrocities that had occurred in Darfur and ending the climate of impunity
there,™™ but indicated that the United States would have preferred a hybrid
tribunal in Africa. She claimed that the resolution was ˜˜precedent-setting™™
because, she believed, in the future, ˜˜absent consent of the State involved,


133
UN Security Council, Resolution 1593 (2005).

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