The United States
and many advocates of the International Criminal Court (ICC) have
long been at odds over the structure, autonomy, and jurisdiction of
While these differences have not been resolved, the U.S. opposition
to a United Nations Security Council resolution referring the
situation in Darfur region of Sudan to the ICC has rekindled
international and domestic attention on America's policy toward the
Proponents of the
ICC argue that the court is the best option to investigate
allegations of war crimes, human rights violations, and possible
genocide in Darfur. The U.S. instead has advocated a regional ad
hoc tribunal established by the Security Council charged with
specifically addressing the situation. As with earlier
disagreements over U.S. policy toward the ICC, advocates of the
Court seek to portray the U.S. position as shortsighted and at odds
with human rights.
could be further from the truth. The U.S. position is one based on
accountable government, respect for sovereignty, and a desire for
local resolution of problems.
U.S. Efforts to Stop
Atrocities in Darfur
The crisis in
Darfur began in 2003 when two rebel groups challenged the authority
of the Islamist government in Khartoum. The rebel groups claimed
that the government was discriminating against the African ethnic
groups in favor of nomadic Arab ethnic groups. The resulting
conflict quickly escalated: Over 70,000 people have died, and 1.8
million have fled to refugee camps in Sudan and neighboring Chad.
Numerous reports allege rampant atrocities committed by the Arab
"Janjaweed" militia groups against non-Arab villagers with the
support of the Khartoum government.
The U.S. has been
leading the effort to stop the atrocities in Darfur. While serving
as Secretary of State, Colin Powell declared that violations of
human rights, war crimes, and genocide are occurring. The U.S. led the effort
to pass a Security Council resolution condemning the atrocities and
has pressed for economic sanctions on Sudan because of the
government's support for militia groups committing atrocities in
Darfur. The U.S. has been a key supporter of the African Union
peacekeepers authorized by the Security Council to monitor the
situation, in addition to being the largest donor of humanitarian
aid to the region, providing nearly $550 million since 2003.
The U.S. has been
frustrated in its effort. The Security Council has not imposed
sanctions because China, France, and Russia, afraid that their
commercial interests would suffer, have threatened to veto
resolutions imposing sanctions. The United Nations Human Rights
Commission has minimized criticism of Sudan because that nation
sits on the Commission. And ICC advocates have focused attention
away from the true failure-the inability to get a Security Council
resolution imposing sanctions if Sudan fails to constrain the
Janjaweed-onto U.S. opposition to a Security Council resolution
requesting that the ICC investigate atrocities in Darfur.
Why the ICC Is Not
the Best Option
The ICC has no
jurisdiction in Sudan because that nation is not a party to the ICC
and the alleged crimes are occurring in Sudan and being committed
by Sudanese people. Therefore, advocates of the ICC are urging the
Security Council to refer the case to the court by way of Article
13 (b) of the Rome Statute. The U.N. commission investigating
abuses committed in Darfur offers a useful summary of the arguments
on why the Security Council should refer the case to the court. These arguments are not
investigation and prosecution of crimes perpetrated contributes to
peace and stability by removing obstacles to national
reconciliation and peace. Investigation and prosecution of
those responsible for crimes is important, but pursuit of justice
must be tempered by the need to end atrocities. The immunity
offered to General Augusto Pinochet paved the way for democracy in
Chile. The national reconciliation process in South Africa has
proven successful. While this paper is not advocating such an
option for Darfur, alternative means for removing despots or
resolving conflicts should not be dismissed in all cases-especially
if heedless pursuit of justice makes peace or transition to
democracy more difficult.
Trials in The
Hague might ensure a neutral atmosphere and be less likely to stir
up political passions.
Using the ICC would undermine ongoing
efforts to build regional capacity among Africans to handle
conflicts and hold those who commit atrocities to account. As noted
by international lawyers Lee Casey and David Rivkin, "both of the
ICC's current investigations involve African countries, the
Democratic Republic of Congo and Uganda, respectively. Adding
Darfur to this list begins to look a very great deal like European
justice for African defendants."
authority of the ICC, backed by that of the United Nations Security
Council, might compel both Sudanese government and rebel leaders to
submit to investigation and possible criminal proceedings. The
Security Council possesses the authority, jurisdiction, and
enforcement capacity necessary to compel cooperation in Sudan. As a
party to the United Nations Charter, Sudan must abide by decisions
of the council. The Security Council can grant authority to the
ICC, but could just as easily grant it to an ad hoc tribunal. The
ICC has no jurisdiction in Sudan and by itself brings no authority
to the table.
The ICC, with
an entirely international composition and a set of well-defined
rules of procedure and evidence, is best suited to ensuring a
veritably fair trial.
The ICC possesses characteristics that
would not be deemed "fair" by most Americans, including the
possibility of double jeopardy, absentee trials, inability to
confront witnesses testifying against the defendant, permissibility
of hearsay evidence, and other usages not permitted in American
Nor is the ICC international in the sense that all nations support
it. On the contrary, only half the nations of the world are parties
to the ICC. An ad hoc tribunal approved by the Security Council
would be international in composition-indeed, would be universal as
the Security Council compels compliance by all U.N. member
states-and could adopt any rules deemed appropriate including the
ICC's rules of evidence and procedure.
The ICC could
be activated immediately, without any delay.
The ICC could
indeed decide to investigate, but an ad hoc tribunal would be
directed to investigate. Both would suffer from necessary delay.
For instance, the ICC prosecutor received referrals to investigate
alleged crimes in Uganda and the Democratic Republic of the Congo
on January 1, 2004, and April 19, 2004, respectively.
The prosecutor took six
months to open an investigation in Uganda, took more months to
designate judges, and still has not prosecuted anyone a year later.
The decision on Congo took two months, with similar delays on
judges and prosecutions. An ad hoc tribunal based on the existing
infrastructure of the International Criminal Tribunal for Rwanda
would reduce delay in establishing an ad hoc tribunal and could
count on support from African states.
institution of criminal proceedings before the ICC, at the request
of the Security Council, would not necessarily involve a
significant financial burden for the international community.
This is doubtful. The International Criminal Tribunal for the
former Yugoslavia (ICTY) had a staff of 1,238 as of January 2004
and a budget of $135.9 million, and the International Criminal
Tribunal for Rwanda (ICTR) had a staff of 1,042 and a budget of
By comparison, the draft ICC budget for 2005 estimates a staff of
526 and a budget of $89.6 million.
Expenses for staff
account for 57 percent of the draft ICC budget, or $97,095 per
staff member. Budget expenditures on staff at the ICTY and the ICTR
are 58 percent and 68 percent, respectively, or about $69,372 per
staff member at ICTY and $77,279 per staff member at ICTR.
Thus, a considerable
amount of saving gained through a permanent staff working multiple
cases will be lost through higher staff costs. Moreover, the
budgets of the ICTY and ICTR increased swiftly in the early years
as they began investigations and trials. Since the ICC has barely
begun to investigate the current cases in Uganda and Congo, its
budget will likely increase substantially over the next few years
as the ICC begins to fully investigate, collect evidence, make
arrests, and conduct trials. While the U.S. is not a party to the
ICC and cannot be assessed for these expenses, it is likely that
the ICC will request funds from the U.N. if the Security Council
refers a case to the body.
The bottom line is
that, while the U.S. is opposed to a Security Council resolution
supporting an ICC investigation in Darfur, it also has proposed a
credible-perhaps superior-alternative for holding perpetrators of
crimes to account.
The United States
has been a leader in trying to force the Sudanese government to
stop its support of the militia groups committing atrocities in
Sudan's Darfur region. The failure of the Security Council to
impose sanctions on the Sudanese government despite the best
efforts of the U.S. government is a tragedy that sadly reveals the
failures of the U.N. in dealing with human rights abuses.
Unfortunately, ICC advocates have focused attention away from the
true failure onto U.S. opposition to the ICC. In truth, the U.S.
fully supports the idea of a tribunal to address allegations of war
crimes, human rights abuses, and genocide.
As important as it
is to bring those responsible for the atrocities in Darfur to
account, the first priority must be to stop the killing. If
supporters of the ICC spent a fraction of the energy consumed by
criticizing the United States on trying to pressure China, France,
and Russia to support a strong Security Council resolution imposing
sanctions on Sudan if the Sudanese government continues to support
militia groups and authorizing a peacekeeping force charged with
protecting the people in Darfur, they would do far more good for
those suffering in Darfur.
Schaefer is Jay Kingham Fellow in International Regulatory Affairs
in the Center for International Trade and Economics at The Heritage
Foundation and former assistant for ICC policy at the Department of