Published: February 2 2005
It is unsurprising that the United Nations Darfur inquiry has concluded that the atrocities occurring in the west Sudanese region did not constitute a policy of genocide. Rather, the five experts found that widespread and systematic violations of international law, perhaps constituting crimes against humanity, had occurred and that named, but undisclosed, individuals were responsible for the carnage.
The commission would have taken a significant risk, in the three months it had, in both defining certain atrocities as “genocide” and identifying the perpetrators who acted with the requisite intent “to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. It has taken years of investigative work by the Yugoslavia and Rwanda international criminal tribunals to match the “acts of genocide” to high-level perpetrators under indictments charging them with the specific intent to commit those acts.
The quest for a finding of “genocide” in Darfur should remain an essential objective in the courtroom and among governments. With the legacy of inaction in Rwanda much on its mind, the US believes genocide occurred in Darfur. But Washington has failed to stop the atrocities. The Genocide Convention requires parties “to prevent and to punish” the crime of genocide, but lays out no means by which to achieve prevention. No nation would have ratified the convention if it had forced them to use national militaries in foreign wars to stop genocide. But the duty to prevent genocide can be met only if nations are prepared to act effectively against atrocities long before lawyers prove the case for genocide.
Determining “genocide” is largely beside the point. War criminals ignore the legal wrangling over definitions. Their agenda remains secure: atrocities that have claimed tens of thousands of lives, displaced an estimated 2m Sudanese, unleashed daily rapes and destroyed hundreds of villages. We need to redefine the basket of crimes known as serious war crimes, crimes against humanity (including ethnic cleansing) and genocide simply as “atrocity crimes” and let prosecutors and judges determine which perpetrator committed which type of crime.
Meanwhile, governments, international organisations and the public must move quickly to prevent further attacks on civilians and ensure the means exist to bring leading perpetrators to justice soon. Ideas on prevention abound - from targeted sanctions on the Sudanese government to a much-strengthened African Union or multinational force, empowered to protect all civilians under a tough Security Council mandate.
The drive to make individuals accountable could be given impetus if the Security Council referred the Darfur situation to the International Criminal Court - an idea strongly recommended in the Darfur report. The ICC’s statute permits such referrals under Security Council enforcement authority, meaning that Sudan (a non-party to the ICC) would be compelled to allow investigators on its territory and to surrender indicted suspects to the court. The Bush administration, long opposed to the ICC, has proposed building a new hybrid court led by the African Union and using the facilities of the Rwanda tribunal in Arusha.
The Bush plan is unrealistic and inconsistent. African and European governments are parties to the ICC and will find any new Arusha court with dubious powers of investigation and enforcement a costly and far more inefficient means of handling justice in Darfur. It could take years to set up the hybrid court, and the US would doubtless have to finance its budget of hundreds of millions of dollars.
I spent years negotiating to fulfil the US desire for an ICC that would be prompted to take action by the Security Council. Given the opportunity to activate the ICC in precisely that way, George W. Bush now balks. The council’s resolution could be written to confine the ICC’s jurisdiction to Sudanese suspects and territory and a limited period. The resolution could recommend to the General Assembly that any UN funding for the ICC investigation of Darfur should be voluntary. It could also exempt from surrender to the ICC any multinational forces deployed to Darfur by nations not party to the ICC - Washington’s probable quid pro quo demand. The US should let Europeans lead in persuading Russia and China of the merits of a council referral and then, if Mr Bush still fears the legitimacy of the ICC, abstain on the referral vote. Millions of Darfur victims would still applaud Mr Bush.
The writer, former US ambassador at large for war crimes issues (1997-2001), is a visiting professor at the George Washington University Law School