US opposes Hague trial for Darfur war crimes suspects

AFP: 1/21/2005

WASHINGTON, Jan 21 (AFP) - The United States on Friday backed prosecution of Sudanese suspected of committing atrocities in the troubled Darfur region but opposed bringing them before the International Criminal Court.

"We have had a number of objections to the International Criminal Court, and therefore don't believe it's the best option for this," said State Department spokesman Richard Boucher.

The United States has refused to recognize the ICC, based in The Hague, fearing the court could be used to prosecute politically motivated charges against US diplomats or troops around the world.

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(New York, January 24, 2005) - International prosecutions are needed to deter ongoing atrocities in Darfur, Human Rights Watch said today in a report documenting crimes the Sudanese government and its allied militias have committed with complete impunity. On Tuesday, the U.N. international commission of inquiry on Darfur is expected to report its findings to the U.N. Secretary-General. In September, Resolution 1564 mandated the commission to investigate violations of international humanitarian law and human rights in Darfur, to determine whether genocide has occurred, and to identify perpetrators with a view to holding them accountable.

"Regardless of whether there has been genocide, the scale and severity of the ongoing atrocities in Darfur demand an urgent international response," said Peter Takirambudde, Africa Director at Human Rights Watch. "Given Sudan's continuing failure to prosecute the perpetrators, the Security Council needs to refer the situation of Darfur to the International Criminal Court."

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Don

In fact such a referral would be consistent with U.S. policy on the ICC. The United States has never opposed ICC prosecutions across the board. Rather, it has maintained that ICC prosecutions of non-treaty parties would be politically accountable and thus legitimate if they received the imprimatur of the Security Council. The Darfur case allows the United States to argue that Security Council referrals are the only valid route to ICC prosecutions and that countries that are not parties to the ICC (such as the United States) remain immune from ICC control in the absence of such a referral.

This course of action would signal U.S. support not only for the United Nations but for international human rights as well, at a time when Washington is perceived by some as opposing both. And it would give the United States leverage in seeking genuine sanctions against Sudan, especially with France, which for oil-related reasons has quietly resisted U.S. efforts on Darfur. France would have a hard time opposing a package of sanctions that included U.S. support for an ICC referral. Opposition by China and Russia would be harder to overcome but would at least make clear to the world that those two powerful nations are even more opposed to the ICC than the United States.

U.S. support for a Security Council referral might also point the way to a compromise with European nations that are anxious to secure U.S. backing for the international court but oppose state-to-state deals that overtly immunize U.S. citizens from ICC jurisdiction. Agreement on the need for Security Council approval for ICC prosecutions would provide a more principled way for Europe to alleviate U.S. concerns about rogue ICC prosecutions. Critics would decry this approach as a double standard for Security Council members, who can protect themselves by vetoing a referral. But this double standard is woven into the fabric of international politics and is the relatively small price the international system pays for the political accountability and support that only the big powers, acting through the Security Council, can provide.

The fears of "legitimizing" the ICC are overstated. It's too late to kill the International Criminal Court. The Security Council (including the United States) presupposed the ICC's authority when it voted in 2002 and 2003 to immunize U.N. peacekeepers from ICC prosecutions. And the institution is now up and running, preparing for cases already referred to it. For better or worse, the ICC is not going away anytime soon.

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