JURIST Guest Columnist Michael Kelly of Creighton University School of Law says that an International Criminal Court finding of genocide in Sudan could change negative American attitudes towards the new Hague tribunal…

Genocide may yet be found to have occurred in Darfur despite an international determination that it has not. Having received the case from the UN Security Council, Luis Moreno-Ocampo, Prosecutor of the International Criminal Court, will conduct an investigation into the atrocities that have unfolded in this western region of Sudan, claiming countless lives and driving two million people from their homes into hastily arranged, understaffed refugee camps across the border in Chad. Indeed, he has already begun collecting documentary evidence.

Ocampo's investigation may lead to the finding that genocide was committed by government-backed Arab militias against the predominately black population, whose villages have been burned to the ground during the last year, and whose death toll was recently estimated by a British House of Commons committee at 300,000. This notwithstanding an opposite finding in Jnauary 2005 by the United Nations Commission of Inquiry on Darfur, which reported to Secretary General Kofi Annan that only war crimes and crimes against humanity had occurred there, not genocide. The ironies of this evolving legal situation abound.

Foremost is the possibility that the ICC might ultimately come to support a legal conclusion drawn by the United States which was rejected by the United Nations, putting the US in an awkward political position. The US has steadfastly opposed the ICC since its creation in 2002. Indeed, the Bush Administration has gone so far as to withdraw America's signature from the Rome Statute that created the court and seek over 90 bilateral immunity agreements with individual countries which protect Americans from the court's jurisdiction. The US even hesitated supporting the Security Council resolution that referred the case to the ICC, trying instead to garner support for creation of another ad hoc court based on the Rwanda tribunal model, before finally agreeing to abstain from voting rather than vetoing the measure.

But Congress and the Bush Administration have also concluded that the situation in Darfur unequivocally constitutes genocide and must be stopped. It was at American prodding than the Security Council requested Annan to form and dispatch the UN Commission of Inquiry to Sudan. While the commission found that the objective elements of genocide had occurred, mass killings of a distinct ethnic or racial group, it failed to find evidence of the subjective element – specific intent on the part of the government or its agents to destroy the group in whole or in part. The showing required to prove specific intent is more than mere knowledge. Washington continued to disagree, however, insisting that genocide was evident.

The Security Council resolution referring the case to the ICC does not frame the referral in terms of the UN Commission's findings. Instead, it simply refers the "situation in Darfur" to the court. In other words, Ocampo's inquiry is not specifically limited to investigating war crimes or crimes against humanity. His inquiry is left free to uncover evidence of genocide independently, even the missing specific intent. The only country of the fifteen-member Security Council that expressly based its support of the resolution on the Commission's findings as a limiting feature was Argentina. Yet another irony, as Ocampo is Argentine.

Khartoum predictably rejected this assertion of judicial authority over it. Sudan, like the US, is not a party to the Rome Statute and has not otherwise availed itself of the ICC's jurisdiction. In fact, the government has undertaken its own internal atrocity investigations – widely viewed as a sham. One element of the Security Council's resolution particularly ruffling Sudanese feathers is the blanket immunity conferred on other citizens of countries not party to the Rome Statute, such as the US. Sudan argues that this is a manifestation of ICC's true purpose: as yet another tool for repressing poor, developing countries. The fact that the three cases currently under referral to the Prosecutor are also poor African nations (Congo, Uganda, and the Central African Republic), play into this assertion.

The referral also puts Ocampo in a politically precarious position. He is faced with a chance to appease Washington and tamp down on the hostility directed toward the ICC, but to do so means discrediting the UN Commission. However, a pre-trial chamber approval mechanism which places the court institutionally behind his investigation may provide necessary political cover from any international backlash.

If the ICC Prosecutor determines that genocide has occurred in Darfur, Washington may yet be able to have its policy cake and it eat too – international recognition of genocide in Sudan with continued immunity of Americans from ICC jurisdiction. And it may, in the end, cast a somewhat more friendly glance in the direction of The Hague, where the ICC is based. Or was that a wink?

Michael Kelly is Associate Professor of International Law at Creighton University in Omaha, Nebraska and author of the forthcoming book Nowhere to Hide: Defeat of the Sovereign Immunity Defense for Crimes of Genocide & the Trials of Slobodan Milosevic and Saddam Hussein (Peter Lang, 2005) – foreword by Desmond M. Tutu.
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