From Mark Goldberg on Sudan and the International Criminal Court


I just got a fascinating note in my inbox from Mark Goldberg, who writes regularly for UN Dispatch and the American Prospect. Since he’s not planning on writing this up himself, I’m going to post his note in full. It’s worth a read.
Also, I hope my two posts today don’t discourage readers from scrolling down to see what James Wolfensohn wrote this morning or the announcement of Sameer Lalwani as our third partner in crime here at TWN. Welcome, Sameer!
I also want to recap my WH meeting on this fall’s climate summit, take a few hard shots at Barack Obama’s latest foreign policy speech, and link Russia’s claim on the North Pole to the U.S. effort to ratify the Law of the Sea – but I unfortunately don’t have time for any of that today.
Without further ado, Mark’s note:

In May 2005, I submitted a Freedom of Information Act request for cable traffic and other items that spoke to the development of Darfur policy at the State Department. Finally, last month, I received a package of some 800 documents. Not all of the documents are that useful, but there are some fascinating tidbits hidden therein — including documents pertaining to the winter/spring 2005 debate at the Security Council over whether or not the International Criminal Court should be given jurisdiction to prosecute alleged war crimes in Darfur.
(Some background: Since taking office, the Bush administration has been openly hostile to the ICC out of a fear that the court would launch politically motivated prosecutions of Americans. At times, the administration’s opposition to the court has bordered on monomaniacal obsession. The administration, for instance, imposed military and economic sanctions on allies that support the court, even as those allies had troops deployed in Iraq. Then, in late January 2005, an Italian judge named Antonio Cassese suddenly put the administration in a bind. Cassese had led a UN investigation into suspected war crimes in Darfur, and in a report to the Security Council he recommended that the council authorize the ICC to investigate.)
The documents I’ve obtained detail the administration’s headstrong reaction to a potential Security Council vote on an ICC referral for Darfur.
In early January 2005, upon learning that Cassese was to recommend ICC referral, UN Ambassador Jack Danforth sent a cable to Washington asking for instructions. The cable, addressed to Secretary of State Rice, recounts a meeting Danforth held with French Perm Rep Jean-Marc de la Sabliere (and an individual whose name is redacted.) Danforth was informed by de la Sabliere that France would, in fact, take up Cassese’s recommendation. Danforth, therefore, asked Rice for some direction: should the US seek to A) block the ICC referral all together, or B) simply carve out US exemption (that is, insert language into the resolution that would grant immunity to any Americans that might be somehow be caught up in the investigation.)
Danforth recommended the later course, saying that doing so would make life easier for everyone. His advice was not heeded. Rather, for the next three months, the US sought to block a resolution giving jurisdiction to the ICC, because in the words of a cable from Foggy Bottom “we do not want to be confronted with a decision on whether to veto a court resolution in the Security Council.” In place of the ICC, the United States proposed creating an alternate “accountability venue” that would be an African Union-United Nations hybrid court that would prosecute Darfur’s war criminals using the facilities of the International Criminal Tribunal for Rwanda.
I followed this story closely at the time, but until I read these cables I had no idea the lengths to which the administration was willing to go in pursuit of this alternate option. Rice directed the US mission to the UN to “position ourselves to table our text before any other member formally proposes language seeking accountability through the ICC.” But the Europeans did not confuse first with best. EU members of the Security Council held firm against the AU-UN hybrid option, so the administration sought to circumvent them.
“The proposal might gain momentum…if the Africans supported it,” reads one cable. Pierre-Richard Prosper, the US Ambassador at Large for War Crimes Issues, traveled to Africa to press AU member states to agree to the American proposal for a hybrid, AU-UN court. Prosper delivered talking points and a so-called “concept paper” about the hybrid option to the president of Senegal, who was to travel to Chad to discuss it with regional powers like Nigeria and South Africa during an AU summit on Sudan.
The talking points Prosper delivered show real desperation. One point says the hybrid court would be less costly than the ICC — which was a point the Europeans strenuously denied. (Further, the Europeans countered that they would not agree to fund the hybrid court when they are already paying dues to the ICC). Also, the talking points argue that the ICC is a lesser option because it cannot prosecute crimes prior to 2002. (Never mind that the fighting in Darfur did not break out until 2003-2004.) Finally, as if the ICC were some European plot against Africans, one point cynically says “so far the only referrals have related to activities in Africa.”
The administration had hoped that Senegal would convince other AU member states of the wisdom and utility of the hybrid option. Alas, this effort to failed. On March 31, 2005, the United States abstained from resolution 1593, which gave the ICC jurisdiction to investigate crimes in Darfur. The US sought — and won — exception from the ICC as was originally counseled by Danforth. In the meantime, three months of diplomacy were needlessly wasted as the US pursued the hair-brained hybrid option.
When people say that the international response to Darfur has been slow, you can point them to this anecdote.

— Scott Paul


One comment on “From Mark Goldberg on Sudan and the International Criminal Court

  1. larry birnbaum says:

    Trials for the criminals would be good. First though they have to be stopped.
    By the way, I’d be interested in a pointer to information about issues such as: how are judges to the ICC chosen; how cases are brought to the court, and how its jurisdiction is decided; who or what is the court accountable to, and is there any mechanism akin to impeachment whereby a judge can be removed? Etc.


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