JURIST Guest Columnist Elena Baylis of the University of Pittsburgh School of Law says that while Darfur may be a dream case for the International Criminal Court, the value of the International Criminal Court for Darfur is yet to be seen…

On March 31, 2005, the United Nations Security Council adopted Resolution 1593, referring the ongoing conflict in Darfur to the International Criminal Court. This referral represents a watershed moment for the new court, and for the Security Council and the United States in their relationships to it. What, if anything, it will mean for the people of Darfur is less certain.

In many ways, Darfur is the International Criminal Court’s dream case. At the most fundamental level, it fulfills the court’s core purpose: to redress widespread atrocities when governments cannot or will not do so. The court also has a strong mandate for action in the international outcry against Darfur’s horrors and against the impunity of its perpetrators. This mandate is crucial for a controversial and as yet untested court that needs desperately to prove its legitimacy. Under the spotlight of world attention, the ICC’s success or failure in handling this case may well determine its future credibility as a mechanism for accountability.

Darfur is also a perfect fit for the International Criminal Court’s jurisdiction, which is strictly limited by the terms of its Rome Statute. The ICC has jurisdiction over only the most serious and well-recognized international crimes: genocide, war crimes, and crimes against humanity. The systematic attacks on defenseless villages that have occurred in Darfur are classic examples of war crimes and crimes against humanity, and, depending on the intent of the attackers, may constitute genocide as well.

All the key events in Darfur are also within the ICC’s limited temporal jurisdiction, which began only with the entry into force of the Rome Statute on July 1, 2002. Whereas many world conflicts have been ongoing for years, so that the ICC could exercise jurisdiction over only a small and likely unrepresentative sliver of those conflicts, the widespread violence in Darfur began only in 2003.

Finally, the ICC has jurisdiction over individual defendants only on the basis of the two most well-established principles for jurisdiction, territoriality and nationality, or if the Security Council refers a situation to the court. Although Sudan (the state on whose territory the attacks occurred and the state of nationality of most potential defendants) is not a party to the Rome Statute and has not accepted the ICC’s exercise of jurisdiction, the Security Council’s resolution confers jurisdiction on the court in this case.

In addition to the nearly ideal match between the events in Darfur and the ICC’s mandate and jurisdiction, this case is also important to the ICC because it is the Security Council’s first referral to the new court. As such, it represents for the ICC a welcome affirmation of its legitimacy. The proper relationship between the Security Council and the ICC was hotly debated during the drafting of the Rome Statute, and the question of how these two bodies will balance the sometimes conflicting goals of international peace, security and accountability remains an open one.

But the Security Council resolution represents a critical juncture not just for the ICC, but also for the Council and for the United States. The U.S. government has long criticized the ICC’s Statute for permitting the Prosecutor to bring charges against citizens of states that are not parties to the treaty, and as failing to safeguard sufficiently against politically motivated prosecutions generally. Expressing particular concern about the risk of prosecution of Americans serving in peacekeeping operations, the United States has sought Article 98 agreements from other states to shield its citizens from ICC jurisdiction.

In this referral, the U.S. government’s opposition to the ICC as an institution came into direct conflict with its interest in justice for the victims in Darfur. Crucially, the Security Council acceded to U.S. concerns in Resolution 1593 by excluding the citizens of non-state parties who contribute to Security Council or African Union operations in Sudan from the ICC referral, unless the state itself consents to that jurisdiction (with the exception, of course, of citizens of Sudan, also a non-state party). With this concession, and with the failure of its own effort to garner support for an ad hoc tribunal, the U.S. acquiesced in the referral, abstaining from the 11-0 vote on the resolution and refraining from exercising its veto power to thwart it.

Predictably, both proponents and opponents of the ICC have characterized the text of the Darfur resolution as supporting their positions. Supporters of the ICC have described it as demonstrating the court’s authority and the international community’s commitment to ending impunity, while the United States has asserted that the included exemption for non-parties is precedent-setting acknowledgment of the validity of U.S. concerns that should be followed in future cases.

But while this referral may be crucial for the ICC, the Security Council, and the United States, what will it mean for the people of Darfur? While in some senses this is the ideal case for the ICC, in others it represents an enormous challenge to the institution and to its goal of justice for the victims of atrocities.

In particular, Sudan’s opposition to the ICC’s involvement represents both practical and fundamental obstacles for the court. On a practical level, no international tribunal can operate without a state’s cooperation in turning over defendants and evidence and permitting investigation. If Sudan shields its citizens from the ICC, the court will be hard pressed to proceed against them.

On a more fundamental level, criminal proceedings in international tribunals have often failed to meet victims’ expectations of justice. The ad hoc tribunals for Rwanda and Yugoslavia have been criticized as too distant, too slow, and as both limited and biased in their selection of defendants. These prosecutions, it has been argued, have removed the most senior defendants from the local courts where they might have been tried in accordance with local standards and within view of the local population, and where they would have been subject to the death penalty if convicted, as their subordinates have been. The ICC will undoubtedly encounter similar concerns.

In addition, some victims would prefer other models of justice to criminal trial and punishment. In Uganda, where the ICC is investigating the atrocities committed in the government’s conflict with the Lord’s Resistance Army, the New York Times has reported that some victims oppose ICC involvement. The reasons offered: fears that prosecutions will prolong the bloodshed, as well as the sense that foreign models of retributive justice will not bring reconciliation to their communities as well as local processes, left to their own devices, could do.

Finally, the ICC referral is intended not only to provide after the fact justice in Darfur, but also to deter the militias there through fear of prosecution, and to add to the international pressure on the Sudanese government to intervene to end the conflict. It remains to be seen whether the court’s involvement will contribute to these political goals. For now, while the Darfur referral is a crucial development for the ICC, and for both its proponents and opponents, it represents only an uncertain opportunity for justic
e in Darfur.

Elena Baylis teaches international and comparative law at the University of Pittsburgh School of Law. She is a graduate of Yale Law School.
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