Working towards Justice in Darfur: What next after the ICC referral?

Published: 1 May 2005

Refugee Rights News 
Volume 2, Issue 1
May 2005

Over the past few months the Darfur Consortium, a network of Africa-based and Africa-focused civil society organizations, has been actively engaged in working towards finding a peaceful and just solution to the ongoing violence in Darfur.

Exploring the situation on the ground

In February, the Consortium organized a team primarily of African experts to travel to Chad to evaluate first hand the devastating effects of the conflict. The mission was followed by a meeting of experts held in Kampala, Uganda to discuss the findings of the mission team and how the Darfur Consortium might formulate a plan of advocacy in the context of the broader international community’s engagement with the Darfur crisis. A particular focus of discussion were the findings of the International Commission of Inquiry which was appointed to explore whether or not international crimes (specifically crimes against humanity, war crimes or genocide) had been committed in Darfur.

The Commission’s findings were made public on the eve of the team’s departure for Chad. The Commission concluded that war crimes and crimes against humanity had taken place. And although the Commission felt unable to make a finding that a policy of genocide had been pursued by the government, it asserted that those crimes which it found had been committed in Darfur were no less serious. The Commission recommended that the situation in Darfur be referred to the International Criminal Court (ICC) for further investigation, arguing that the Sudanese justice system had shown itself to be unwilling or unable to prosecute offenders. The Commission also suggested that as a permanent mechanism, the ICC had the advantage of being more cost effective and would be able to commence investigations more quickly than an ad hoc tribunal set up solely to deal with Darfur.

Advocating for a referral to the ICC

At the meeting in Kampala, members of the Darfur Consortium decided to embark on a campaign to support the referral to the ICC. Intensive efforts by Consortium members in Cairo, Khartoum, Geneva, London and Dar es Saalam, complemented work centered on the Security Council in New York where the Consortium met extensively with representatives of key members during the long negotiations over what action was to be taken on Darfur. While some states, including Algeria (which holds a non-permanent seat on the Council), the United States and Nigeria, argued that an African tribunal would be the most appropriate venue for action, the Darfur Consortium argued that the ICC was at once an African and international mechanism, pointing out that many African states supported the ICC and that some of the ICC’s top officials were African jurists.

The debate ended on March 31, 2005 with the Security Council finally approving SC Resolution 1593 granting the ICC jurisdiction to investigate ongoing atrocities in Darfur. The Resolution passed by a vote of 11-0, with four countries abstaining, an extraordinary result considering the complex politics involved. Algeria and the United States cited their preference for an African tribunal as the reason for their failure to support the referral. But the United States’ reluctance was compounded by their ideological opposition to the ICC itself. The fact that they did not exercise the veto was due in part to the inclusion in the Resolution of a provision exempting nationals of states not parties to the ICC Statute who are involved in peacekeeping from the jurisdiction of the Court. At the other end of the scale of views, Brazil withheld its vote precisely to object to compromise language introduced to appease the United States. China justified its failure to support the resolution by saying that a political process for peace should be prioritized over the quest for justice.

In welcoming the referral, Dismas Nkunda, speaking on behalf of the Consortium noted that, “there is still more work to be done, but we hope that this week’s votes in the Security Council are a signal that the plight of Darfurians has been pushed to the top of the international agenda.”

What are the next steps for justice?

There is a great deal more work to be done. After the initial euphoria of the success of the referral, NGOs are facing the difficult task of negotiating their own involvement with the Court. Should NGOs be assisting the Court in gathering evidence? If so, what are the parameters of that evidence gathering? Will particular training be needed in order to ensure that the evidence that they gather would be admissible?

Other questions revolve around negotiating the how the progress of prosecutions may interact with the process of peace. In the context of northern Uganda, representatives of the local communities, for example Rwot David Acana, an Acholi leader, have criticized the ICC’s actions as jeopardizing the ongoing peace process in that context. The consensus from Darfurian activists as well as Darfurian refugees in Chad, in contrast, has been that assistance from the international community is necessary to achieve justice and there can be no prospect of peace without justice. In fact, advocates like Suliman Baldo, Africa Program Director at the International Crisis Group, assert that the lack of justice is currently the greatest obstacle to peace. It will be important, however, for the international community to remain aware of developments on the ground and to monitor how the developing investigation affects the peace process and public perception.

With regard to public perception, NGOs may also have a crucial role to play in raising awareness both within Sudan and elsewhere in Africa about the referral, both its potentials and its limitations. For some who are being persuaded to view the ICC’s intervention as unconscionable meddling in Sudan’s internal affairs, a more complete understanding of the principle of complementarity—which requires that the Court consider the ability and willingness of the government to prosecute before taking on a case—might assuage some fears. Others may harbor unrealistic expectations for the Court and early sensitization about the Court’s limitations may avoid resentments born of disappointment. NGOs will also need to keep a focus on the additional justice mechanisms that will be necessary to pursue a comprehensive justice.

In addition to struggling to engage with the justice issue, there is a long way to go for advocates on the issue of civilian protection. Although the UN Security Council did approve deployment of a UN peacekeeping force to Sudan in March, the force will be centered in southern Sudan and it is unclear at this stage how it might be able to impact on the security situation in Darfur. The African Union force remains hampered by its limited mandate and meager troop contingent. NGOs, particularly African NGOs, can make a substantial contribution to generating the political and material support that will be necessary to bolster the effectiveness of the AU contingent.

NGOs have won a major success, but there is much, much more to be done.

Programmes: Resolving Displacement
Type: Library, Refugee Rights News