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134
Ibid., para. 2.
135
Ibid., para. 6.
136
Ibid., para. 7.
231
The First Situations

any investigations or prosecutions of nationals of non-party States should
come only pursuant to a decision by the Council.™™ This was an effort to
claim victory for the United States™ position that a citizen of a nonstate
party could not be subject to the ICC unless the state of citizenship per-
mitted jurisdiction “ a position clearly at odds with the jurisdictional regime
of the Rome Statute, under which such a person could be subject to the
Court if the crime took place on the territory of a state party to the Rome
Treaty.137
She was glad that the resolution ˜˜recognized™™ that no ICC expenses
would be borne by the UN (ful¬lling a U.S. demand but contravening Rome
Statute Article 115(b), under which the costs of situations referred by the
Security Council were to be ¬nanced by the UN), threatening that ˜˜any
effort to retrench on that principle by the United Nations or other orga-
nizations to which the United States contributed could result in its with-
holding funding or taking other action in response.™™138
Relations between the United States and ICC remained distant at a for-
mal level; however, there were some signs that a thaw was possible.
Assistant Secretary of State for African Affairs Jendayi Frazer testi¬ed to
a congressional committee hearing on Sudan in late 2005 that Deputy
Secretary of State Robert Zoellick ˜˜has signaled that if the ICC requires
assistance, the United States stands ready for any assistance. But they
haven™t asked us for any assistance in developing their list [of suspects] or
getting the government to adhere to any ICC charges.™™139 When, during the
hearing, Congressman Donald Payne of New Jersey urged cooperation
between the Department of State and the ICC, the ambassador reiterated,
˜˜Deputy Secretary Zoellick has made very clear that if we were asked by the
ICC for our help, we would try to make sure that this gets pursued fully, to
use his words, because we don™t want to see impunity for any of these
actors. So they haven™t asked, but if they did, we stand ready to assist.™™140
Oddly, the Court thereafter did not seek U.S. help.141


137
Rome Statute Article 12.2(a).
138
UN Security Council, Statement of Anne Woods Patterson, United States, following the
vote. UN Security Council, Resolution 1593 (2005). As Cryer, op cit., 206, points out,
there is a UN constitutional issue here because the General Assembly, not the Security
Council, has exclusive authority over budgetary matters under UN Charter Article 17.
139
U.S. House of Representatives, Committee on International Relations, Subcommitte on
Africa, Global Human Rights and International Organizations, ˜˜Sudan: Losing Ground on
Peace?™™ (2005), 29.
140
Ibid., 32.
141
Interviews.
232 Building the International Criminal Court

China abstained from the vote, according to its representative™s statement
to the Security Council, because of ˜˜major reservations™™ regarding some of
the provisions of the Rome Statute and because it believed that the perpe-
trators should be tried in Sudanese courts. The Algerian representative would
have preferred an African Union“devised solution to the problem of Sudanese
impunity as well as to resolve the con¬‚ict itself.142 The Brazilian represen-
tative indicated strong support for the ICC and the referral but objected to
the resolution™s paragraph 6, which proclaimed the U.S. view on the selective
jurisdiction of the Court and thus ˜˜would not strengthen the role of the
International Criminal Court.™™143
The good news for the ICC was that the United States had abstained. The
United States™ desire to support humanitarian interests, counter impunity in
the Sudan, and avoid the approbation of other states, particularly those of
the European Union, overcame its objections to the Court. The bad news
for the Court was that, with the referral, the ICC faced a huge challenge:
Sudan had not agreed to its jurisdiction, and although bound under the UN
Charter to ful¬ll Security Council resolutions, the government showed no
signs of willingly cooperating with the Court. The ICC may have been
handed a task that it was bound to fail.
The good news from the standpoint of impunity in the Sudan was that
the Security Council referral denoted an international commitment to
pursuing the perpetrators of large-scale crimes. The bad news was that, like
the situation in Yugoslavia at the time of the ICTY™s creation, the inter-
national community showed little willingness to take more vigorous action
to protect the victims of the ongoing crimes, and assignment to the Court
could be seen as a ¬g leaf for inaction.
Countering impunity and supporting humanitarian law were only two of
the outside powers™ multiple objectives in Sudan. The United States, Great
Britain, Russia, and China were all interested in the oil concessions Khartoum
controlled. In addition, the United States and Great Britain were in close
contact with the government on measures to monitor and counter suspected
Al Qaeda terrorist operations in the area. Perhaps most ¬‚agrantly, the head
of Sudan™s national security agency, Major-General Salah Abdullah Gosh,
generally considered by observers to be one of the architects of the govern-
ment™s activities in Darfur, was welcomed in London and at the CIA for


142
UN Security Council, Statement of Abdallah Baali, Algeria, following the vote. UN
Security Council, Resolution 1593 (2005).
143
Statement of Council President Ronaldo Mota Sardenberg, Brazil, following the vote. UN
Security Council, Resolution 1593 (2005).
233
The First Situations

discussions with intelligence of¬cials about Al Qaeda as well as Darfur. In
2005, Gosh said, ˜˜We have a strong partnership with the CIA. The infor-
mation we have provided has been very useful to the United States.™™ 144 Given
the mixed motives of the major powers, it remained unclear how much
international cooperation the ICC would receive.


Sudan™s Reaction
Immediately after the Security Council announced the referral on April 3,
2005, the Sudanese Cabinet lambasted the Security Council resolution.
President Uma al-Ashir stated that his government would not hand over any
Sudanese citizens to be tried outside the country, and the Council of Ministers
˜˜declared its ˜total rejection™ of U.N. resolution 1593.™™145 Acting Information
Minister Abdul-Basic Sandarac told state-run Radio Omdurman that the
Cabinet had appointed a committee to work out ˜˜how to deal with this
situation,™™ asserting that the resolution violated Sudanese sovereignty and
would ˜˜further complicate the problem in Darfur and give the wrong signals to
the rebels.™™146
The president further announced that Sudan™s judiciary was prepared to
try those accused of violations in Darfur, demonstrating that the Sudanese
authorities understood ICC admissibility criteria. The government created
a Special Criminal Court to prosecute crimes committed in Darfur. In June,
Justice Minister Ali Mohamed Oman Yasmin stated that the government
considered the new court ˜˜a substitute to the International Criminal
Court,™™ and announced that on June 18 it had begun hearing the ¬rst cases
of 160 people accused of committing crimes in Darfur.147
In response to Sudan™s moves, successive reports by the ICC Chief
Prosecutor asserted that the special court was not focused on leaders of the
crimes of concern to the ICC, and that very small numbers of prosecutions
were actually underway. Sudan had indicated that by December 2005, of
160 individuals who had been identi¬ed for prosecution for crimes in
Darfur, 26 defendants had been tried in six trials, but these were neither for
the kinds of mass crimes over which the ICC had jurisdiction nor of the kind


144
Silverstein, ˜˜Of¬cial Pariah Sudan Valuable to America™s War on Terrorism Despite Once
Harboring Bin Laden, Khartoum Regime Has Supplied Key Intelligence, Of¬cials Say™™
(2005); Beaumont, ˜˜Sudan™s Gosh Holds Talks in London on Darfur and Terror™™ (2006).
145
IRIN, ˜˜Sudan: Darfur War-Crime Suspects Won™t Go to ICC, Government Says™™ (2005).
146
Oman, ˜˜Sudan™s Cabinet Rejects U.N. Resolution on ICC Trials™™ (2005).
147
IRIN, ˜˜Sudan: Judiciary Challenges ICC over Darfur Cases™™ (2005).
234 Building the International Criminal Court

of high-level decision makers “ persons most responsible “ that the ICC
seeks to prosecute.148


The ICC in the Sudan
On April 5, 2005, ICC Chief Prosecutor Moreno Ocampo announced that
he had received thousands of documents from the Special Commission plus
its ¬nal report and a con¬dential annex. The annex included a list of ¬fty-
one individuals and the Commission™s reasons that it suspected them of
committing crimes under ICC jurisdiction. The Chief Prosecutor opened the
sealed envelope with his Cabinet “ the two Deputy Prosecutors (Brammertz
and Bensouda) and the head of the Jurisdiction, Complementarity and
Cooperation Division (Fernandez) on April 7. After they studied the list, the
Prosecutor™s Of¬ce resealed it to maintain con¬dentiality. The OTP publicly
stated that ˜˜the list is advice to the Prosecutor and not mandatory for him
to follow.™™149 Under the OTP™s understanding of the Statute, it was up to
the OTP to conduct its own inquiries and analyses in order to decide
whether to pursue a formal investigation into the Darfur situation.
On June 1, Moreno Ocampo informed the Pre-Trial Chamber and the
President of the ICC that he had decided to go ahead with the formal
investigation.150 Announcing the decision on June 5, the OTP press release
said that in addition to the Special Commission™s report, the OTP had
requested information ˜˜from a variety of sources, leading to the collection
of thousands of documents. The Of¬ce also interviewed over 50 indepen-
dent experts.™™ Moreno Ocampo said that the investigation would focus on
˜˜the individuals who bear the greatest responsibility for crimes committed
in Darfur™™ and would ˜˜require sustained cooperation from national and
international authorities. It will form part of a collective effort, com-
plementing African Union and other initiatives to end the violence in Darfur
and to promote justice.™™151 Optimists regarding the ICC involvement
argued that it would provide some deterrence to ongoing crimes in Darfur.
Former Clinton administration of¬cial and International Crisis Group
Africa analyst John Prendergast asserted, ˜˜Regime of¬cials are very worried
about the long-term rami¬cations of the ICC investigation™™ and added that

148
ICC, Second Report of the Prosecutor, Mr. Luis Moreno Ocampo, to the Security Council,
Pursuant to UNSC 1593(2005) (2005), 5.
149
ICC, ˜˜List of Names of Suspects in Darfur Opened by the ICC OTP™™ (2005).
150
ICC, Of¬ce of the Prosecutor, Letter from Luis Moreno Ocampo to Judge Claude Jorda,
Presiding Judge, Pre-Trial Chamber I (2005).
151
ICC, ˜˜The Prosecutor of the ICC Opens Investigation in Darfur™™ (2005).
235
The First Situations

those ˜˜indicted by the ICC will become international pariahs. . . . Justice
will not come quickly in Sudan. But it will come.™™152
A vigorous but beleaguered NGO community in Khartoum had pressed
for Sudanese rati¬cation of the Rome Statute; engaged with international
counterparts in bringing information about the Court to media, legal
experts, and government representatives; and met with ICC of¬cials in
Khartoum and at The Hague. The United Kingdom and Khartoum-based
Sudan Organization Against Torture (SOAT), af¬liated with the FIDH,
chronicled human rights abuses in Sudan generally and Darfur in particular,
aided in victim rehabilitation, and pressed for Sudanese acceptance of an
expanded UN and African Union peacekeeping presence in Darfur.153
The OTP assembled an investigation team of approximately twenty-six
people who carried out their efforts outside Sudan, since the Sudanese
authorities refused to cooperate with the investigation on site. The safety of
the investigators, much less witnesses and victims, could not be guaranteed
inside Sudan. On June 29 and again on December 13, 2005, Moreno
Ocampo reported to the Security Council on the investigation™s progress.
The reports indicated that documents and other evidence continued to be
collected, cooperation had been requested and obtained from states and
from NGOs, and witness statements were being taken.154
Descriptions of the ICC™s progress in Sudan from ICC insiders indicated
that the investigation faced debilitating dif¬culties. They claimed that lack
of a consistent investigation and prosecution strategy was undermining
progress toward warrants. High personnel turnover sapped momentum.
Tensions with the Registry were inhibiting operations on the ground.
A deteriorating security environment in 2006 led the Registry Security
Division to determine that OTP missions into the area were becoming
overly risky, and the investigation slowed. Some participants in the missions
argued that investigations required taking risks and that the ICC shouldn™t
be seen to be among the ¬rst international organizations to leave when
situations became threatening. The lack of Sudanese cooperation increased
the challenge to the ICC to tenaciously build cases that could stand up in

152
Ford and McLaughlin, ˜˜Global Law Claims New Turf in Sudan™™ (2005).
153
FIDH, Khartoum Centre for Human Rights and Environmental Development, Sudan
Organization Against Torture, ˜˜International Criminal Court Programme Sudan: The
International Criminal Court and Sudan: Access to Justice and Victims™ Rights
Roundtable, Khartoum, 2“3 October 2005™™; Sudan Tribune, ˜˜Peace and Justice in
Darfur: Victims™ Rights Hijacked™™ (2006).
154
ICC, ˜˜Report of the Prosecutor of the International Criminal Court, Mr. Luis Moreno
Ocampo, to the Security Council Pursuant to UNSCR 1593(2005)™™ (2005); ICC, ˜˜Second
Report of the Prosecutor,™™ op cit.
236 Building the International Criminal Court

Court. The task was feasible, some Court personnel argued, but internal
problems were hampering the effort.
ICC representatives visited Khartoum in the spring of 2006 but described
their activities there as investigating what the Sudanese courts were doing
rather than investigating the crimes in Darfur. There was no indication that
ICC teams would be permitted access to Darfur or given access to victims
and/or witnesses in Sudan of the crimes they sought to investigate.
Presidential adviser Salah al-Addin threatened that ICC involvement in
the Sudan would undermine peace efforts:
Those who feel threatened by the ICC, at a certain point, it will be a matter of life
and death to them. They could block the C.P.A. (Comprehensive Peace Agreement).
The situation is so fragile. We shouldn™t be complacent. Sudan is a very dangerous
place. Your Somalia would be a picnic if Sudan degenerates into chaos. It would
draw in the elements you fear most. It would require an in¬‚ux of U.S. troops just like
Afghanistan.155

Ongoing negotiations between the Sudan government and the rebel orga-
nizations mediated by Nigerian representatives in Abuja, Nigeria, produced
a cease-¬re agreement on May 5, 2006, between the government and one
faction of the Sudan Liberation Movement/Army. A second SLM faction
and the Justice and Equality Movement held out, arguing that the peace did
not adequately address underlying and major sources of con¬‚ict. The
Khartoum authorities agreed to meet with UN representatives to discuss
a peacekeeping effort, but no guarantees were made.156 A few weeks later,

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