Legal Bind

In August 2003, the Sudanese government tasked Ahmad Harun, an official in the Ministry of Interior, to oversee the recruitment of janjaweed militia in Darfur. Earlier that year, separatist rebels in Darfur caught the central government off-guard in a series of surprise attacks on state installations. It was thought that the janjaweed -- militiamen comprised of Arab nomads -- could bolster the government's military presence in Darfur and help crush the rebellion.

According to documents recently released by the Prosecutor of the International Criminal Court, Harun traveled to Darfur with boxes of cash and ammunition to distribute to the janjaweed. Once there, Harum struggled with the eternal counterinsurgency quandary: how to discriminate between combatants and civilian? As Harun reflected, "rebels infiltrate the villages," and villages "are like water to fish." Harun's solution was to hire a janjaweed commander named Ali Kushyb and give him carte-blanche to drain the pond.

That decision was a fateful one for the residents of towns and villages in the west Darfur province. Among other atrocities, it led to the summary execution of thirty-two men lined up over a brook, the shooting of a pregnant woman and children, and the rape of women and girls after they had been personally inspected, standing naked, by commander Kushayb himself. One woman told ICC investigators that she was raped by over 20 men while her legs were tied to the trunks of a tree.

This is the tale of Darfur writ small: Two officials, one from the central government the other a janjaweed commander, conspiring to kill, rape, and maim civilians and plunder civilian property. But this time, these two individuals may face justice for their alleged crimes.

On Tuesday, the International Criminal Court, created in 2003 to try war crimes and crimes against humanity, gave these two men the dubious honor of being the first named suspects of war crimes in the Darfur conflict. And they may be joined by others. In the press conference announcing the proceedings against these two, the ICC's top prosecutor, Luis Moreno Ocampo, warned that evidence is still being collected, and pledged to follow the evidence wherever it leads. Presumably, this includes up the chain of command to top leaders in Khartoum.

This puts the Bush administration in a difficult spot. It is at once among the loudest critics of the Sudanese government and one of the strongest opponents of the International Criminal Court. But now that the prosecutorial floodgates are open, the Bush administration may find that the ICC can be useful. So far, Khartoum has remained obstinate to UN Security Council demands that it let a robust peacekeeping force, authorized by the council in August 2006, to deploy to Darfur. But the new ICC proceedings, if handled wisely by policymakers in the United States, could help break Khartoum's opposition to peacekeepers and get a desperately needed civilian protection force on the ground in Darfur.


The Bush administration has never been friendly to the ICC. For a while, its hostility toward the court verged on obsession. In 2002, the Bush administration "unsigned" the previous administration's signature to the treaty that created the court. (Former UN ambassador John Bolton, who oversaw the revocation of American support for the ICC as an Undersecretary of State, famously called this the "happiest moment" in his career as a public servant.) Since then, the Bush administration has sought to limit the court's jurisdiction over American citizens abroad through a series of bilateral treaties with other governments, often signed under the threat of a suspension of military and economic aid.

In early 2005, the Security Council debated granting the court's prosecutor jurisdiction to investigate suspected war crimes in Darfur. At first, the administration demurred and proposed setting up an ad-hoc tribunal like the Yugoslav, Rwandan or Sierra Leone war crimes courts. At the time, UN Ambassador at Large for War Crimes Issues Pierre-Richard Prosper argued for this alternative approach, on the grounds that "the United States does not want to be party to legitimizing the ICC." However, when a proposal to send the ICC into Darfur came to a vote in the Security Council, the United States withheld its veto, abstained from voting, and let the measure pass.

The events on Tuesday were the inevitable consequence of this decision. But today, many in the administration and many outside observers continue to maintain that the ICC is actually exacerbating the conflict in Darfur, by complicating ongoing negotiations that could lead to peacekeepers coming in. Khartoum, after all, is quite open about its concern that UN troops may one day execute arrest warrants against them and their janjaweed allies. Writing in The Washington Post, Stephen Rademaker, a former assistant secretary of state from 2002 to 2005, called the ICC an "unwitting partner to genocide" whose investigation "reinforces the regime's impulse to say no [to peacekeepers]. Indeed, it would be hard to devise a policy better calculated to perpetuate Sudan's refusal to accept a U.N. peacekeeping force in Darfur." Andrew Natsios, the U.S. special envoy to Sudan, is known to hold similar sentiments.

To be sure, Khartoum is likely to react to Tuesday's news with public acts of defiance. In a somewhat analogous situation, one year ago this week the ruling National Islamic Front organized street protests against the UN following the public disclosure (originally by The American Prospect Online) of a secret annex to a Security Council report that recommended targeted sanctions against named members of the regime in Khartoum. At the time, Sudanese President Omar al Bashir even took to the streets, warning the world that "Darfur will be foreign troops' graveyard."

These were not exactly welcoming remarks. Still, blaming the ICC (or this author's reporting) for Khartoum's intransigence misses the fundamental reason that Khartoum has yet to accept a peacekeeping force: The regime has been impervious to international calls to let peacekeepers into Darfur because no real pressure has yet to be applied that would force them to do so. Partly, this defiance reflects Sudan's favored status with China, which purchases most of the country's oil exports. (The two countries' relationship was solidified even further during Chinese President Hu Jintao's jaunt through Africa last month.) But American policy, while often hitting the right sound bites about Darfur, has rarely backed up its tough talk with meaningful action -- it speaks loudly and carries a small stick. In the absence of serious American or international arm-twisting, Khartoum has yet to budge from a cost-benefit analysis that favors keeping the UN out of Darfur.

Crucially, "arm-twisting" does not necessarily or even likely mean "sending the Marines" or launching cruise missile attacks against Sudan. There are a number of intermediary steps which could do much to convince Khartoum that peacekeepers in Darfur are an offer it cannot refuse. The United States could push the Security Council to threaten targeted individual sanctions against high level officials in Khartoum and economic sanctions against Sudan's state-run commercial enterprises if the government remains uncooperative. (So far, targeted individual sanctions apply only to two mid-level government officials -- a reflection of the Bush administration's kid-gloves approach.) The United States can also state its intention to enforce the no-fly-zone that the Security Council authorized nearly two years ago.

The ICC proceedings provide one further opportunity for the United States to back its tough talk with action. If the United States acts in partnership with other like-minded countries and helps enforce the ICC mandate, Khartoum would be under a level of international pressure that it has not yet experienced. And, crucially, once indictments and arrest warrants are actually handed down, they could serve as bargaining chips between the Security Council and Khartoum. Instead of holding back ICC proceedings as a carrot to entice Khartoum's cooperation, warrants and indictments could be used to coerce Khartoum's assent to peacekeepers.

Indeed, the drafters of the court's statute foresaw a situation precisely like this one. The Rome Statute that created the court gave the Security Council the power to postpone ICC activities if they were seen to amount to threats against peace and security. This postponement can last up to 12 months, and can be renewed. If the court decides to issue the arrest warrants, the very same Security Council that authorized this investigation can postpone, perhaps indefinitely, any war crimes trials that may ensue.

Of course, before we get to this point, the court must first follow its own internal procedures. The names and evidence that the prosecutor detailed on Tuesday must past muster with a pre-trial chamber. If that chamber decides that the evidence merits a prosecution, it can then issue arrest warrants or summonses. And if proceedings against Harum and Kushayb do go forward, high level regime officials will certainly be put on notice. The United States would be wise to use this as an opportunity to pile the diplomatic pressure high and hard on Khartoum. After four miserable years, the people of Darfur require nothing less.

Mark Leon Goldberg is a senior correspondent at The American Prospect and a writer in residence at the United Nations Foundation.

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