In a grisly coincidence, on January 27, 2005, one day before a report on suspected crimes against humanity from the U.N.'s International Commission of Inquiry on Darfur was to be delivered to the Security Council, the government of Sudan broke a short-lived ceasefire and leveled a village in northern Darfur with an air strike that killed 100. Sadly, according to the Commission's exhaustive 176-page report of its four-month long fact-finding mission in Darfur, the kind of bombing and indiscriminate attacks that occur on an "ongoing basis" in the trouble province of Sudan.
The report, which was completed by a team lead by the former head of the International Criminal Tribunal for the former Yugoslavia, Italian judge Antonio Cassese, provided gruesome evidence of a systematic campaign of rape and murder against the civilian population of Darfur. Though it stopped short of calling the atrocities in Darfur "genocide" -- a label that the Bush administration and human rights groups have rightly used to describe the carnage -- it does allege that specific high-ranking government, military, and Janjaweed militia leaders may have acted with "genocidal intent."
Legally speaking, genocide requires a higher standard of proof than other crimes against humanity. It must be supported by evidence of the "intent to destroy, in whole or in part, a national, ethnical, racial, or religious group" -- "intent' being the operative word. To this end, a sealed annex to the report names about 30 alleged perpetrators of crimes against humanity -- some of whom it specifically alleges may have committed their crimes with that genocidal intent.
To prove this intent, and to bring to justice those responsible for the atrocities in Darfur, the report suggests that the Security Council grant the International Criminal Court the jurisdiction to investigate and prosecute the crimes against humanity in Darfur. And for the Bush administration, here's the rub.
Since taking office, the administration has aggressively opposed the ICC. In this newest manifestation of the administration's crusade against the court, U.S. Ambassador-at-Large for War Crimes Issues Pierre-Richard Prosper reacted to the report by telling a gathering of reporters at the United Nations that the Bush administration "does not want to be party to legitimizing the ICC" by acquiescing to its investigation Darfur. But in midst of an ongoing genocide in Darfur, and with the rest of the world poised to act with a unified purpose, the Bush administration's decision to obstruct a Security Council vote on the ICC and Darfur may be sending the wrong message to the worst of Sudan's war criminals.
Indeed, if we are to judge by the reaction of Khartoum officials to the report, many of them are scared at the prospect of being hauled into court for their actions. On February 2, the Secretary General of the ruling National Congress Party, Ibrahim Ahmed Omar, sought to play down the report's significance when he told reporters, "We are going to show that there are some claims which are false and there are some misreadings of some facts in some situations."
Sudan's justice minister, Ali Mohamed Osman Yassin, went a step further. He flatly rejected the Commission's finding when he told a Reuters reporter that there is "no evidence" to back up the claims of war crimes and that the sealed annex amounted to "hidden evidence."
To be sure, these are the predicable words of defiance by a regime accused of committing the world's most heinous crimes. But they also reveal a degree of fear previously unseen by regime officials who seem to realize their era of impunity could come to an end. The report accuses six unnamed, high-ranking members of central government in Khartoum of conspiring in a "joint criminal enterprise" with eight local government officials and 14 Janjaweed militia leaders to commit crimes against Darfur's civilian population. Though the names of the accused are being withheld from the public, the accused know who they are. But unless a unified Security Council can convince Khartoum officials of the seriousness of its intent to bring wrongdoers to justice, this opportunity may pass.
Unfortunately, given the Bush administration's sui generis hostility to the court, the Security Council's ability to relay to the regime in Khartoum a unified sense of purpose has been severely undermined. Since the Cassese report was released, the Bush administration has delayed the progress in Darfur by suggesting alternative venues for trying Sudan's war criminals. On February 1, a State Department spokesman told reporters that the Bush administration will press the United Nations to refer the Darfur atrocities to an "accountability tribunal" to be built on the existing infrastructure of the International Criminal Tribunal for Rwanda which is seated in Arusha, Tanzania. In theory, this proposal does not sound bad. In practice, the delay involved in preparing that tribunal -- which is already overwhelmed and understaffed -- would mean business as usual in Darfur. The delay would also send the message, in the words of Human Rights Watch's Richard Dicker, that "the Bush administration seems willing to sacrifice Darfur's victims to its ideological campaign against the court."
Of course, no one thinks indictments alone will stop the killing. But until a robust peace-keeping force is on the ground in Darfur, the best hope for deterring future massacres is to level the credible threat of criminal prosecution against the militia and government leaders who organize the killings. Rather than ordering further bombing raids on defenseless villages, leaders in Khartoum who fear prosecution may instead play down their roles as war criminals; like any criminals about to face justice, they are likely to expend energy hiding their crimes -- not committing more crimes that would require further covering up.
Some deterrents are more effective than others, and the Cassese report rightly recommends the International Criminal Court as the proper venue because the deterrent factor would be fully maximized there. At the moment, the world's leading jurists and prosecutors are sitting in offices just waiting to sic the heavy hand of justice on the criminals of Darfur. The court has been preparing for this moment for three years -- unlike the Rwandan option, the ICC is open and ready for business. Should the Security Council confer upon the ICC the jurisdiction to try Sudan's war, the indictments could be handed down relatively quickly.
The Bush administration is virtually alone in the world with its zero-sum approach to a potential ICC investigation of Darfur. Even China, no fan of the ICC, has indicated an openness for the court to have a role in Darfur. According to a Los Angeles Times report, China's ambassador to the United Nations, Wang Guangya, said that China would defer to the African Union a decision on the ICC, saying "they know what is best for Sudan better than we do."
The Bush administration, though, is not so flexible. Their worries about "conferring legitimacy" to the ICC indicate they are so opposed to the idea of an international criminal court that they can't fathom that the court, in practical terms, may be useful.
At the base of this opposition to the ICC is a theory of international relations that constructs strict boundaries on the limits of international humanitarian law and international criminal justice. Until now, this has been a largely academic argument. With this critical moment in Darfur presently before us, the administration's principled objection to the ICC has transformed into an obstructionism that costs lives. In a time of genocide, this is not only morally reprehensible but may embolden those who carry out the genocide; they would not be irrational to think that, at least for a while, they are free to continue on their murderous rampage with impunity.
Mark Leon Goldberg is a Prospect writing fellow.
By Mark Leon Goldberg
Reprinted with permission from The American Prospect, 5 Broad Street, Boston, MA 02109. All rights reserved