Why the U.S. Is Right to Support an Ad Hoc Tribunal for Darfur

Report Global Politics

Why the U.S. Is Right to Support an Ad Hoc Tribunal for Darfur

February 15, 2005 10 min read
Senior Research Fellow in International Regulatory Affairs
Brett D. Schaefer is the Jay Kingham Fellow in International Regulatory Affairs at Heritage's Margaret Thatcher Center for Freedom.

The United States and many advocates of the International Criminal Court (ICC) have long been at odds over the structure, autonomy, and jurisdiction of the Court.[1] 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 ICC.


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.


Nothing, however, 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.[2] 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.[3]


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.[4] These arguments are not convincing.

  1. The 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.
  2. 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."[5]
  3. Only the 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.
  4. 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 courts.[6] 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.
  5. 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.[7] 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.
  6. The 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 $125.6 million.[8] By comparison, the draft ICC budget for 2005 estimates a staff of 526 and a budget of $89.6 million.[9] 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.[10] 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.


Brett D. 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 Defense.


[1]For a discussion of this debate, see Brett D. Schaefer, "Justice by Fiat," National Review on-line, June 21, 2004, at www.heritage.org/Press/Commentary/ed062104e.cfm; see also Lee A. Casey and David B. Rivkin, Jr., " The International Criminal Court vs. the American People," Heritage Foundation Backgrounder No. 1249, February 5, 1999.

[2]Secretary of State Colin L. Powell, "The Crisis in Darfur," testimony before the Committee on Foreign Relations, U.S. Senate, September 9, 2004, at www.state.gov/secretary/former/powell/remarks/36042.htm.

[3]United States Agency for International Development, " DARFUR-Humanitarian Emergency," Fact Sheet No. 18, January 28, 2005.

[4]Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Section IV, Part II, 1(i), "Justification for suggesting the involvement of the ICC," paragraph 574, Geneva, January 25, 2005, at www.unicwash.org/selected/darfur2.htm.

[5]David B. Rivkin Jr. and Lee A. Casey, "Darfur's Last Hope," The Washington Times, February 4, 2005, A19.

[6]Casey and Rivkin, "The International Criminal Court vs. the American People."

[7]"Situations and Cases," International Criminal Court, at www.icc-cpi.int/cases.html.

[8]Budgets are approved for two years. Therefore, these numbers are half of the biennial budget of the tribunals. International Criminal Tribunal for the former Yugoslavia, "The ICTY at a Glance," at www.un.org/icty/glance/index.htm, and International Criminal Tribunal for Rwanda, "General Information," at www.ictr.org/default.htm.

[9]International Criminal Court, " Draft Programme Budget for 2005," Document ICC-ASP/3/2*, Third Session, The Hague, September 6-10, 2004, pp. 3-4.

[10] Staff costs are based on 2004-2005 appropriations for Posts, Other staff costs, Non-staff compensation, and Consultants and experts. This total was divided in half to reach an annual staff budget. The annualized staff budget was divided by half the gross budget to get a staff cost ratio. The annualized staff budget was divided by the number of staff for the respective courts to get a per staff average cost. Sources: "First Performance Report of the International Tribunal for the Former Yugoslavia for the Biennium 2004-2005," Report of the Secretary-General, General Assembly Document A/59/547, November 2, 2004, p. 5; and "First Performance Report of the International Criminal Tribunal for Rwanda for the Biennium 2004-2005," Report of the Secretary-General, General Assembly Document A/59/549, November 2, 2004, p. 4. Calculations based on budget data provided on "Table 2: Summary of projected expenditures by object of expenditure and main determining factors" in each report.


Brett Schaefer

Senior Research Fellow in International Regulatory Affairs