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SUDAN: ICC Reports Evidence of Large-Scale Massacres

Fritzroy A. Sterling

UNITED NATIONS, Jun 15 2006 (IPS) - The chief prosecutor of the Hague-based International Criminal Court (ICC) told the U.N. Security Council Wednesday that investigators have uncovered evidence of “large-scale massacres” in Darfur, Sudan, but stopped short of labeling the situation there “genocide”.

Attacks on villages and refugee camps by Khartoum-backed Arab militias, or Janjaweed, have killed as many as 400,000 people over the past three years, and left another 700,000 homeless and without access to humanitarian relief.

In his third report to the Security Council since the case was referred to the ICC in March 2005, Prosecutor Louis Moreno-Ocampo said that the court’s investigative team has compiled a Darfur Crime Database for the period October 2002 to May 2006, which shows that the violence began escalating in October 2002 and peaked from April 2003 to April 2005.

“The available information indicates that these killings include a significant number of large-scale massacres, with hundreds of victims in each incident,” Moreno-Ocampo said.

Although some of the massacres appear to have been carried out with “genocidal intent”, he said, the issue is still being investigated and the prosecutor’s office will not characterise the crimes until a full probe has been conducted.

He also noted that investigators are hampered by the precarious security situation in the countryside, and must be able to ensure that witnesses are able to testify without fear of reprisals. Moreover, many rape victims may opt to remain silent at the risk of being ostracised and rebuked, he said.

“The continuing insecurity in Darfur is prohibitive of effective investigations inside Darfur, particularly in light of the absence of a functioning and sustainable system for the protection of victims and witnesses,” Ocampo said.

“Many of the investigation mechanisms are reactive to complaints, but there is a reluctance or inability on the part of witnesses to come forward with complaints and in some cases there are allegations of intimidation and harassment of complaints.”

As a result, the ICC is conducting the bulk of its investigation from outside Sudan. It established a temporary office in eastern Chad where many displaced Darfur residents had sought refuge. However, fighting between rebel groups and the Chadian government effectively shut down the ICC’s activities there in April, forcing the court to withdraw its staff from the area. The eastern Chad operations are currently still suspended.

The other challenge that could severely interfere with the prosecutor’s pursuit of justice for the victims of Darfur will be the court’s ability to wield its jurisdiction, which depends in large part on how much cooperation the court gets from the Sudanese government.

Since Ocampo’s formal announcement of the ICC investigation, the government of Sudan has established various courts and commissions to conduct its own probe of the Darfur atrocities, a move that has drawn criticism from groups like Human Rights Watch and Amnesty International. Under its statute, the ICC is not allowed to explore a case once the Sudanese government has begun investigating or prosecuting the same charges.

The Sudanese government established the Special Criminal Court on the Events in Darfur (SCCED), two specialised courts, and other institutions that provide support to those courts, including the Judicial Investigations Committee, the Special Prosecutions Commissions, the National Commission of Inquiry and the Committees Against Rape.

“Sudan’s establishment of the Special Criminal Court on the Events in Darfur was certainly designed to block ICC jurisdiction,” Adam Wolfe, a senior analyst at the Power and Interest News Report, told IPS. “However, there are statutes within the ICC’s charter that would allow it jurisdiction in Darfur, if the U.N. had the political will to do so.”

The Security Council’s adoption of Resolution 1593 gave the ICC full jurisdiction to investigate and prosecute individuals accused of committing war crimes and other atrocities against humanity in Darfur, despite a lack of U.S. support for the resolution or the ICC itself.

“The U.S. has always been concerned about the possibility of its own citizens being subject to international prosecution,” said Dr. Simon Chesterman, executive director of the Institute for International Law and Justice at New York University School of Law. “The U.S. has always supported international criminal law, but it is opposed to the ICC.”

Initially, the official U.S. position on Sudan was to push for a special Darfur tribunal, which signaled a desire to help but fell short of a tangible effort such as a commitment of troops, according to Chesterman.

Whether major logistical support from the U.S. would mitigate the challenge of ensuring the safety of potential witnesses and improve the ICC’s ground operations in eastern Chad is unclear. However, any effort by the U.S. to undermine the ICC’s full authority would almost certainly complicate the court’s investigation.

“While China and Russia have been blocking any U.N. action on Darfur, by working to weaken any resolutions that emerge from the Security Council on the subject, the U.S.’s aversion to the ICC has also been a factor in preventing the ICC from gaining a foothold in Sudan,” Wolfe said.

“The ICC already has limited jurisdiction in Sudan,” Chesterman said. “A decision by the U.S. to fully support the ICC’s investigation could result in the provision of intelligence, the provision of vital information, and the provision of security.”

In light of the Darfur Peace Agreement signed in May between the Sudanese government and the Sudan Liberation Movement, the largest rebel group, the Security Council is focused on deploying a U.N. peacekeeping mission in Darfur, according to Wolfe. There are currently 7,200 African Union (AU) troops in Darfur.

A U.N. peacekeeping mission in Darfur will reinforce the AU troops, perhaps even allowing the ICC to move operations there, ensuring that the court’s staff, potential witnesses and the people of Darfur are relatively safe, and ultimately guaranteeing that the prosecutor can use what little jurisdiction the court has effectively.