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CIAO DATE: 04/05/07
The Darfur Dilemma: U.S. Policy Toward the ICC
by John Stompor
During the first U.S. presidential debate in September 2004, President George Bush, who was then running for re-election, pointedly reminded the audience that he had withdrawn U.S. support for the International Criminal Court (ICC), criticizing it as “a body based in The Hague where unaccountable judges and prosecutors can pull our troops or diplomats up for trial.”1 President Bush, in his first term, had actively opposed the ICC, authorizing the U.S. State Department not only to declare that the United States no longer considers itself bound by its signature to the treaty establishing the Court, but also to seek agreements with individual states and resolutions of the UN Security Council providing immunity from the ICC for U.S. nationals, employees, and contractors. The U.S. Congress followed the president’s lead, prohibiting cooperation with the ICC and authorizing the suspension of military aid and Economic Support Fund assistance to states that have not entered into immunity agreements with the United States.2 Each of these measures attempted to undermine the legitimacy and effectiveness of the ICC.
While the United States pursued its policy of active opposition to the ICC, evidence mounted that the Sudanese army and its proxy militia, the Janjaweed, were committing serious humanitarian crimes of international concern in the Darfur region of Sudan. In September 2004 Secretary of State Colin Powell testified to Congress that an investigation found “[a] consistent and widespread pattern of atrocities (killings, rapes, burning of villages) committed by [Janjaweed] and Sudanese government forces against non-Arab villagers.”3 He further testified that the State Department concluded that “genocide has been committed in Darfur and the Government of Sudan and the [Janjaweed] bear responsibility.”4 In January 2005 the U.S.-supported International Commission of Inquiry on Darfur completed its report finding that “the Sudanese judicial system has proved incapable, and the authorities unwilling, of ensuring accountability for the crimes committed in Darfur” and strongly recommending the immediate referral of the Darfur situation to the ICC.
In response, less than three months after President Bush’s second inauguration, the United States refrained from vetoing UN Security Council Resolution 1593, which referred the Darfur crisis to the ICC, thereby marking the first instance that the Council had authorized the ICC’s jurisdiction to investigate and prosecute genocide, crimes against humanity, and war crimes. State Department spokesman Richard Boucher explained the U.S. vote by stating: “The United States believes very firmly in accountability for the crimes that have been committed in Sudan . . . [T]here is a mechanism that many members supported in terms of doing that . . . the International Criminal Court. And so we abstained because we think it is very important that these crimes are prosecuted.” 6 In May 2005 Deputy Secretary of State Robert Zoellick went a step further, recognizing the importance of the ICC’s role in Darfur. He stated: “And so in a way, even though [the ICC] hasn’t proceeded to the investigation or . . . trial stage, it’s a useful deterrence against others and allows us to emphasize a tool about the need to stop the violence from . . . local militias to in-between government officials to high-level government officials.”
The crimes in Darfur exposed the tension between the U.S. belief in accountability for genocide, war crimes, and crimes against humanity, on one hand, and the U.S. policy of active opposition to the ICC on the other. Political pressure in support of accountability and the absence of viable alternatives to the ICC exacerbated this tension. As a result, the administration found it was not in the United States’s interest to stand in the way of a Security Council referral of the situation in Darfur to the Court.
This dramatic turn of events should foretell the coming of a truce between the United States and the ICC. The United States has a commitment to support accountability for the grave crimes committed in Sudan, and in the Darfur referral the United States has consented to grant the ICC the mandate to pursue justice. A cessation of U.S. hostilities with the ICC, however, should not be confused with anything more, such as a movement toward ratification. An examination of the history of the U.S. relationship with the ICC and its reasons for allowing the Darfur referral reveals that fundamental issues prevent the development of closer relations. Moreover, the development of U.S. relations with the ICC is likely to be influenced by a number of complicating factors, including the form of international efforts to assist the ICC, legal developments at the Court, and U.S. counterterrorism policy.
John Stompor is a Senior Associate of the International Justice Program of Human Rights First.