I am a recent graduate of University of California, Davis with a major in Political Science and a minor in Global and International Studies. Currently, I am studying for the LSAT and next year I plan on attending law school in the East Coast. I spent a lot of my childhood traveling extensively and this past spring, I was able to study abroad in Europe for ten weeks. These experiences shaped me into the global citizen that I am and opened my horizons. This paper was originally meant to be only for my International Law class. Researching the genocide in Darfur taught me so much about the systems and rules.
THE INTERNATIONAL CRIMINAL COURT, UNIVERSAL JURISDICTION, CUSTOMARY LAW, AND COMPLIANCE IN THE DARFUR GENOCIDE
Abstract
The Darfur genocide is the first genocide to take place in the twenty-first century and is still ongoing. There are many legal issues behind the United Nations and International Criminal Court’s actions regarding the situation in Darfur. This paper will analyze the relevant sources of law in the Darfur genocide. Additionally, this paper will examine role of the International Criminal Court (ICC) in Darfur and their jurisdiction in indicting Sudanese government officials. This paper will also include a discussion on the debate of genocide being partly customary international law and relate the points of the debate to the case in Darfur. The relevant actors in the Darfur genocide will be examined as pertaining to the arrest warrant for Sudan’s President al Bashir. The paper will then go into the universal jurisdiction debate pertaining to the ICC’s involvement and the arrest warrants for Sudanese officials. Lastly, the aspects of compliance and enforcement of ICC rulings will be examined regarding the Darfur genocide.
Introduction
The Darfur genocide, which began in 2003 and is still ongoing, was the first genocide of the twenty-first century. In 2003, two rebel groups in Darfur, the Sudan Liberation army (SLA) and the Justice and Equality movement (JEM), protested against the government and took up arms. They complained that the area of Darfur was marginalized and that the government failed to protect people in local villages from nomads, who would unleash attacks. The government responded by releasing Arab militias known as “Janjaweed” to attack villages in Darfur alongside Sudanese forces. The Janjaweeds destroyed Darfurian villages, engaged in acts of torture, rape, and murder of civilians, and looted the economic resources of the area. The Sudanese government denies any of these acts and states that they have no ties to the Janjaweeds. This genocide has claimed the lives of over 480,000 people and displaced over 2.5 million people (United Human Rights Council, 2015). In 2005 the International Criminal Court (ICC) began investigations into human rights violations in Darfur, but the Sudanese government refused to cooperate with the ICC’s investigations. On March 4, 2009 the ICC indicted Sudan’s President Omar al Bashir, the first sitting president to ever be indicted. There are arrest warrants out for President al Bashir, the Sudanese Minister of State for the Interior, and the Janjaweed militia leader (United Human Rights Council, 2015).
The idea behind the International Criminal Court (ICC) had its origins in international criminal tribunals. This began with the Nuremberg trials following World War II and went away for a while after. They came up again in the 1990s as ad hoc tribunals in Rwanda and Yugoslavia to try individuals (and governments) who were guilty of genocide. These ad hoc international criminal tribunals created a precedent for the future ICC. Chapter VII of the United Nations Security Council states that war leaders can be put on trial, which created a basis for the ICC. The Rome Statute, written in 1998 and entered into force in 2002, essentially creates the ICC. It implements ad hoc tribunals (like Rwanda and Yugoslavia) on a regular basis. This is a treaty-based tribunal meaning that it is only legally binding to the states that sign the Rome Statute (Simmons and Danner, 2010).
- Relevant Sources of Law
1.1 Justification of ICC Involvement
The International Criminal Court (ICC) was entered into force in 2002 via the Statute, written in 1998. The Rome Statute was created due to the successes of the International Criminal Tribunals of Rwanda and Yugoslavia, which aided to end the genocides in Rwanda and Yugoslavia respectively. The Rome Statute creates the ICC and states specific crimes under which the ICC has jurisdiction over. The text of the statute states, “It (ICC) shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern…]” (Rome Statute, 1998). Crimes that are stated in the Rome Statute Article 5 are genocide, war crimes, crimes against humanity, and in some cases aggression (Rome Statute, 1998). Under these cases the ICC may get involved to stop the crimes from happening. Genocide is defined as “acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group” (Rome Statute, 1998). The term “war crime” is defined as “grave breaches of the Geneva Conventions of 12 August 1949” which are crimes committed against civilians during a war time (Rome Statute, 1998). The phrase “crimes against humanity” is defined as “any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (Rome Statute, 1998). These acts could include murder, torture, enslavement, and the like. Aggression is not defined in the Rome Statute since there is no provision on it (Rome Statute, 1998). There are four ways in which the ICC can get involved in the affairs of countries even if they are not a part of the Rome Statue, which are stated in Articles 11-13. They are: 1) the crime is committed in an ICC member state, 2) the crime is committed by a national of an ICC member state, 3) nonmember states give the ICC ad hoc jurisdiction, and 4) the crime is referred to ICC by the United Nations Security Council (UNSC) (Rome Statute, 1998). For this last category (the referral), there can be no vetoes in the UNSC resolution to get involved in the country.
On September 18, 2004 the UNSC passed Resolution 1556, which requested that the UN-Security General creates a commission of inquiry for Darfur. Thus the International Commission of Inquiry on Darfur (ICID) was created. The commission’s task was to investigate any reports of violations of human rights and to identify any perpetrators and hold them accountable for the actions (UNSC Resolution 1556, 2004). The ICID came with reports that there were crimes against humanity and war crimes going on in Darfur, which meant that prosecution by the ICC was justified. The ICID was reluctant to call the actions in Darfur genocide since the government of Sudan had no genocidal intent; however they noted that some of the objective elements of genocide were met (Udombana, 2006). The Genocide Convention of 1951 defines ‘genocide’ “as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group” (Genocide Convention, 1951). The ICID explained that Darfur did meet several of these elements since the Sudanese government and the Janjaweeds were targeting the specific population of black Sudanese in Darfur. The two forces were engaging in acts of systematically killing civilians and acts of torture for a targeted group of civilians. The ICID report, however, explained that there was no genocidal intent and that the acts were a by-product of the two rebel groups uprisings (Udombana, 2006). In Darfur, the actus reus (criminal act) was present since there were genocidal actions happening, but the mens rea (intention of crime) was not present since there was no evidence that the Sudanese government wanted to kill or annihilate a targeted group of civilians (Udombana, 2006).
On March 31, 2005 the UNSC referred the case in Darfur to the ICC as Security Resolution 1593 (Happold, 2006). The case presented to the UNSC explained that the Sudanese government and Janjaweed were responsible for human rights violations in Darfur. As per the ICID report, Sudan was not found to be responsible for genocide; they were only responsible for crimes against humanity and war crimes. Together the Sudanese government and the Janjaweeds had engaged in acts of torture, destroyed villages, and committed acts of sexual violence and murder (Happold, 2006). Resolution 1593 orders that the Government of Sudan and other parties associated with the conflict “cooperate fully with and provide any necessary assistance to the Court and the Prosecutor’ pursuant to the resolution (UNSC Resolution 1593, 2005).
1.2 Customary Law in Genocide
Customary international law can be defined as “the general and consistent practices of states that they follow from a sense of legal obligation” (Goldsmith and Posner, 2005). It has an objective element to it, which is the practice of the states. The objective element is how the states act since this cannot be left for interpretation. It can clearly be seen what practices states follow or do not follow. The subjective element is opinio juris or perceived sense of legal obligation to follow established practices. Some aspects of customary law may not have opinio juris, but they might have jus cogens. Jus cogens are peremptory norms; they provide a psychology to customary law (Goldsmith and Posner, 2005).
There are disagreements as to whether genocide has customary aspects to it or not. Scholars provide evidence on both sides to present the case. In Beyond the 1948 Convention – Emerging Principles of Genocide in Customary International Law, Lori Bruun argues that ending genocide has a place in customary international law since genocide is not just a domestic matter. Bruun argues that genocide is not just an internal conflict for a state and that outside states are also affected by the conflict. As an example, she points out that genocides usually result in a large number of refugees who then seek asylum in neighboring countries (Bruun, 1993). She goes to explain that genocides are a “threat to the peace” and that the United Nations states that once actions are a “threat to the peace”, they are no longer an internal state matter. Bruun states that this leads to the opino juris aspect of customary law because states see a legal obligation to not engage in acts of genocide (Bruun, 1993).
In On What Conditions Can a State Be Held Responsible for Genocide, Paola Gaeta explains that genocide has a place in customary law, but that it is not opinio juris. It has aspects of jus cogens since it is a norm to steer away from acts of genocide. Gaeta explains that the Genocide Convention prohibits the act of genocide and provides punishments to the perpetrators, yet there seems to be an inherent norm that genocidal acts are bad. Gaeta then goes to explain that the prohibition of genocide is not completely customary law since it required a definition at the Genocide Convention. The definition is used to identify acts of genocide and try the perpetrators (Gaeta, 2007). Customary law is not explicit or codified, whereas the Genocide Convention which defines “genocide” is. Therefore, prohibition of genocide is not customary international law.
In Darfur, as stated above, the ICID was not able to prove that the conflict was genocide. They were unable to prove that the intent of the Sudanese government was “to destroy, in whole or in part, a national, ethnic, racial or religious group” (Genocide Convention, 1951). The customary aspects of genocide prevention only apply if the specific requirements of definition are met. Since the case in Darfur was never established as genocide, the jus cogens aspect does not apply. The definition provides a written rule for what counts as genocide and is used to identify acts of genocide. Bruun’s argument deals with outside countries intervening in states that engage in acts of genocide, whereas Gaeta explains that genocide cannot be customary international law since it is codified in the Genocide Convention. Since the ICID and UNSC never established the case in Sudan as “genocide”, Sudan did not break any customary law and did not pose a “threat to peace” (Bruun, 1993). The actions in Sudan are defined as “war crimes” and “crimes against humanity”, so the customary aspects of genocide do not apply.
- Actors
The main actors in this conflict are the Sudanese government and the Janjaweed. An important aspect of the ICC is the fact it is one of few institutions in international law that seeks to prosecute individuals rather than prosecuting states. It holds individuals accountable for their violations of international law by indicting them, prosecuting them, and potentially imprisoning them (Simmons and Danner, 2010). The ICC has the power to hold heads of state accountable for their actions. States who sign the Rome Statute give away the immunity for their head of state if they were to violate international law (Rome Statute, 1998).
On March 4, 2009 Sudan’s President Omar al Bashir became the first sitting president to be indicted by the ICC. The ICC issued an arrest warrant for al Bashir under the conditions that he was criminally responsible for crimes against humanity and war crimes in Sudan. The warrant indicted al Bashir for two counts of war crimes and five counts of crimes against humanity; genocide was never mentioned since the ICID did not establish it as something the Sudan government was criminally responsible for. Al Bashir was noted to be an “indirect perpetrator or indirect co-perpetrator ” since he did not physically carry out every attack, but he is criminally responsible as the head of state (Ssenyonjo, 2010). Under customary international law, heads of state have immunity from criminal jurisdiction since it would hinder them from performing their duties as head of state. The immunity includes immunity from personal arrest or detention, even in cases where the heads of state are suspected of committing crimes against humanity or war crimes. Under the Rome Statute, heads of state are not immune from the jurisdiction of the ICC. The one condition is that states bound by this are members of the Rome Statute. This means that Sudan technically still has immunity due to their non-member status and the Rome Statute cannot create obligations for non-members without their consent. However, in Sudan’s case they were treated as a member state due to Resolution 1593 (Ssenyonjo, 2010).
- The Universal Jurisdiction Debate
Universal jurisdiction allows for any state to exercise jurisdiction over anyone, anywhere if they commit a certain class crime. These crimes need to include threats to the global community or humanity. A few of these crimes are: piracy, slaver, torture, genocide, war crimes, and crimes against humanity.
3.1 Brief Overview of Debate
In The Pitfalls of Universal Jurisdiction Henry Kissinger argues against universal jurisdiction for a number of reasons. To begin with, he states that the idea of universal jurisdiction is a relatively new idea and the signatories were unaware of such an idea being born. He goes on to further this claim by explaining that the drafters of the Helsinki Accords never intended to have universal jurisdiction. Kissinger states, “…it was never thought that they would subject past and future leaders of one nation to prosecution by the national magistrates of another state where the violations had not occurred (Kissinger, 2001). He states that the vague language in the ICC treaty will lead to arbitrariness of indicting perpetrators. This will happen since states may prosecute individuals for political reasons. Kissinger then explains how the ICC prosecutor has too much power and no checks on it, which will lead to defendants not having due process during their indictment. Lastly, Kissinger states that the idea of universal jurisdiction takes away states’ sovereignty and it violates the United States Constitution since it does not follow due process (Kissinger, 2001).
In The Case for Universal Jurisdiction, Kenneth Roth refutes the points made by Kissinger against universal jurisdiction. He begins by stating that universal jurisdiction is not a new concept and it has been used for a number of years to try individuals who commit heinous crimes overseas. Roth then states that the Helsinki Accords do not and could not authorize universal jurisdiction since they are not legally binding. The Accords do not have the authority to grant powers. On the same topic, Roth explains that the signatories of the Helsinki Accords knew what they were signing and accepted all legal obligations and responsibilities. As for the claim that Kissinger makes regarding the vague language, Roth points out that all definitions were used from other sources of international law such as the Pentagon and the Genocide Convention. Regarding the ICC prosecutor and the trials for the ICC, Roth states that the prosecutor and judges can be removed for misconduct. They do not have unlimited power to do as they please. For trials, there is no jury but there is due process. The ICC must adhere to international fair trial standards. One last important point Roth makes is that the Rome Statute deprives the ICC of jurisdiction if the suspected government conduct its own “good faith” investigation and prosecutes if need be (Roth, 2001).
3.2 Universal Jurisdiction in Darfur
Roth explained that universal jurisdiction would be used as a last resort action if the state refuses to conduct an internal investigation. In 2004, the UNSC stated that the actions in Sudan were a threat to international peace and global security and thus asked the Sudan government to respond by disarming the Janjaweeds, trying its leaders, and providing humanitarian aid to those who needed it. Sudan refused to comply with the requests of the UNSC even though they are a member of the United Nations (UN) and so are bound by their obligations (El Masri, 2011). After Sudan’s noncompliance with the UNSC, the ICC took over and began its own investigation through UNSC Resolution 1593. Even though Sudan never signed the Rome Statute, under Chapter VII of UNSC the leaders may be tried and Resolution 1593 gave the ICC the jurisdiction needed to prosecute. Sudan argued that the ICC’s involvement in their affairs was not lawful since they (Sudan) never signed the Rome Statute and therefore are not bound by any of the obligations covered in the treaty. The ICC however, explained that by failing to comply with the UNSC’s requests, Sudan refused to create their own investigation and so the authority and jurisdiction of the investigation was given to the ICC (El Masr, 2011).
The legality of the ICC’s arrest warrant for President Omar al Bashir is questioned since Sudan is not a member of the Rome Statute. Article 27 of the Rome Statute states that the ICC has the jurisdiction to put anyone accused of a specified crime on trial including heads of state or governments (Rome Statute, 1998). This only applies to member states though; a state must be a member to be bound by the obligations of the Rome Statute. However, article 13 of the Rome Statute explains that the ICC may exercise jurisdiction if a case is referred by a state party, by the prosecutor, or by the UN Security Council (Rome Statute, 1998). In Sudan, however, Resolution 1593 acted as Sudan giving the ICC jurisdiction. Sudan is a member of the United Nations (UN) and has signed and ratified the UN Charter. By doing so, Sudan accepts the obligations posed by the charter (El Masri, 2011). In 2004, the UNSC concluded through Resolution 1556 that the actions by the Sudanese government were a threat to international peace and thus authorized the creation of the ICID. After the ICID investigations and reports, the UNSC referred the case in Darfur to the ICC via Resolution 1593. By being a part of the UN Charter, Sudan accepts the responsibilities of the UNSC and accepts the obligations it poses on its government. This makes the arrest warrant for al Bashir justified since the ICC had jurisdiction in Sudan through the UNSC (El Masri, 2011).
- Compliance and Enforcement
Compliance is defined as, “the degree to which state behavior conforms to what an agreement prescribes or proscribes”, while enforcement deals with how a treaty is enforced (Von Stein, 2013). In the Darfur genocide, Sudan was not and still is not a member of the Rome Statute. Therefore, they are not bound by the obligations it poses and do not adhere to the ICC. Sudan is considered a non-state party in the ICC, but in this case they must adhere to the ICC ruling since the UNSC referred the case to the ICC (Totten and Tyler, 2008). As Roth pointed out in his article, the ICC is only used as a last resort. If the suspected state conducts its own “good faith” investigation and prosecutes any perpetrators, then the ICC will not become involved. Sudan ignored the UN’s request to conduct investigations regarding the actions, which prompted the UNSC to refer the case to the ICC. By refusing to comply with the UN’s request for investigations, Sudan indirectly gave the ICC jurisdiction and therefore must comply with the ICC ruling. UNSC Resolution 1593 referred the case in Darfur to the ICC, so Sudan is bound by the ICC obligations even though they are a non-state party in the Rome Statute (Totten and Tyler, 2008). This obligation to comply with the ICC forces Sudan to comply with the ICC obligations and allows the ICC to enforce their ruling in Sudan.
Conclusion
The Darfur genocide, which began in 2003 and is still ongoing, is the first genocide of the twenty-first century. The UNSC took action against the actions in Sudan in 2004 by creating a commission to investigate the case. The commission found no evidence of genocide, so Sudan was only found guilty of war crimes and crimes against humanity. Since no evidence of genocide was found in Sudan, the customary aspects behind genocide do not apply. The commission was not able to meet all requirements stated in the definition for genocide as stated in the Genocide Convention. The UN asked Sudan to conduct internal investigations to end the actions, but Sudan refused to comply. Following this noncompliance, the UNSC passed Resolution 1593, which gave the ICC jurisdiction in Sudan. Within a few months, Sudan’s President Omar al Bashir became the first sitting head of state to be indicted by the ICC. The arrest warrant for al Bashir has been a point of controversy due to Sudan not being a member of the Rome Statute. However, when Sudan refused to comply with the UN’s request for internal investigations, they gave the jurisdiction of the investigations to the ICC. The ICC has the right to enforce their rulings and Sudan must comply with them. The conflicts in Darfur are still ongoing, so there is room for involvement from the ICC and the Rome Statute member states.
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