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Article Excerpt
I. INTRODUCTION
The International Criminal Court's (ICC or Court) case regarding the conflict in Darfur, Sudan sheds light on the development and meaning of the complementarity principle under the Rome Statute of the International Criminal Court (Rome Statute). (1) The case also illustrates the difficulty of enforcing ICC rulings in the territory of a non-State Party such as Sudan (a non-State Party is any country that is not a member of the ICC). The United Nations has mandated that non-State Parties, including Sudan and surrounding nations, cooperate in the ICC case in Darfur; however, recent events indicate that this case will present new challenges to this mandate. (2) This Article will address these challenges both in the context of complementarity and in the context of enforcement of the recent ruling by the ICC issuing arrest warrants for two particular Darfur suspects. Though the Article ultimately concludes that the ICC's complementarity principle is not violated in the case of the two named suspects in the warrants, and hence the ICC may proceed with trying these suspects, it will offer numerous suggestions for providing a role to institutions and actors both within and outside of Sudan as part of an integrated approach to managing the current humanitarian crisis in Darfur.
As a way of incorporating the concept of complementarity into a solution for the Darfur crisis, the Article outlines such an approach, providing a particular role to Sudanese actors and institutions, including the Sudanese special courts, as well as a future truth commission. For example, Sudanese special courts may be able to try some of the low-level criminals involved in the Darfur crimes while the ICC focus its efforts on the leaders of the human rights violations. A Sudanese truth commission could help create a record of the atrocities while providing specific recommendations that directly impact victims' lives in a post-conflict society.
In addition, a particular role for the U.N., the African Union (AU), ICC Member States, and Interpol will be discussed in the context of enforcement of the arrest warrants. If U.N. and AU troops currently in Sudan can not be properly authorized to execute the arrest warrants, then an ICC Member State may be able to execute the warrants with assistance from Interpol.
The effect and outcome of the Darfur case related to these developing issues of complementarity, enforcement, and integration bear serious implications for the Court's future effectiveness and legitimacy.
This Article consists of four Parts examining the on-going Darfur case. Part Two addresses background information related to the Darfur case, including: (1) the history of the ICC; (2) the structure of the Court; (3) the relevant substantive and procedural law; (4) the complementarity principle; and (5) other ICC cases. Part Three analyzes the U.N.'s involvement in Darfur, including the formation of the International Commission of Inquiry in Darfur (Darfur Commission) the Darfur Commission's comprehensive report, and the U.N. Security Council's referral of the case to the ICC. Part Four consists of a review of the progress of the Darfur case in the ICC to date, including the ICC Prosecutor's (Prosecutor) investigation in Darfur, the Prosecutor's Application for Summonses (Application) for two individuals allegedly involved in Darfur crimes, and the recent decision by the ICC's Pre-Trial Chamber to issue arrest warrants for these two individuals. Part Five analyzes emerging issues presented by the evolution of the Darfur case in the ICC, including the issues of complementarity, enforcement, and integration.
II. BACKGROUND
In the past five years an internal conflict in the Darfur region of Sudan has drawn major international attention because of the magnitude of impact on the civilian populations within the implicated territory. Since the most recent crisis began in Darfur, villages have been burned and looted, thousands of people have been killed and raped, and millions have been displaced from their homes. (3) The severity of the conflict has placed urgency on bringing the perpetrators of the violence to justice and ending the culture of impunity.
Recently, with the issuance of arrest warrants for two Darfur suspects in the spring of 2007, the ICC's case relating to Sudan has once again received international attention. (4) This attention, however, is nothing new as the ICC's ongoing case in Darfur has presented a number of novel issues that will impact the functioning of the Court in future cases. Darfur represents the first time a case was referred to the ICC involving crimes taking place in the territory of a State that is not a party to the ICC. (5) The case also marks the first time the U.N. Security Council referred a case to the ICC, as it is permitted to do under the Rome Statute. (6) The Darfur case is also unique because officials of a standing government are implicated in the alleged crimes, rather than non-state actors. In other ICC cases, individuals named in arrest warrants or otherwise made the focus of an investigation were not government officials, but rather individual, private actors. In contrast, one of the individuals named in the recently issued arrest warrants in the Darfur case is a prominent official within the Sudanese government. (7) This case is also the first time an investigation by the ICC has been conducted in the midst of ongoing conflict. (8) And perhaps most significantly, Darfur is the first ICC case in which a question of complementarity has been raised as between the ICC's jurisdiction and the jurisdiction of concurrently established national courts such as those in Sudan. (9)
A. HISTORY OF THE INTERNATIONAL CRIMINAL COURT
The ad hoc tribunal created in Nuremberg after World War II set a precedent for the international community to hold individuals responsible for grave crimes, even though state responsibility still maintained a role at Nuremberg. (10) The ad hoc criminal Tribunals established to address the crises in the former Yugoslavia and in Rwanda continued the pattern of holding individuals responsible for serious breaches of human rights law such as genocide, crimes against humanity, and war crimes. (11) The international community recognized, however, the need for a permanent court for the trial of these transgressions, rather than the continual establishment of ad hoc tribunals in response to each period of serious human rights violations. (12)
In response to this demonstrated need, the international community agreed on the idea of the ICC. The ICC was to be the first court established in advance of, rather than in response to, international human rights violations. (13) In constructing the definitions of crimes that would fall within the Court's jurisdiction, the international community relied upon the statutes for the two regional criminal courts: the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR). (14)
In July of 1998, the Rome Statute was adopted at the U.N. Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, also known as the Rome Conference. (15) On July 1, 2002, the Rome Statute entered into force after ratification by sixty State Parties. (16)
B. STRUCTURE
The International Criminal Court is comprised of the Presidency, an Appeals Chamber, the Trial Chamber, the Pre-Trial Chamber, the Office of the Prosecutor (Prosecutor's Office), and the Registry. (17) Judges are nominated and confirmed by the Assembly of State Parties (Assembly), and they are required to represent diverse geographic, gender, and legal backgrounds. (18) The Prosecutor is also nominated and confirmed by the Assembly. Critically, he or she has the independence to operate the Prosecutor's Office as a separate organ of the Court. (19) The Registry is responsible for all non-judicial aspects of the Court, including the Victims and Witnesses Unit that provides security and assistance for individuals testifying before the Court. (20) Although independent of the U.N., the ICC does have an agreement of cooperation with the U.N. whereby both parties agree to exchange information and assist each other in various ways. (21) Funding is provided by the State Parties, the U.N., and donations from nongovernmental organizations (NGOs) and private donors. (22)
C. SUBSTANTIVE AND PROCEDURAL LAW
The Rome Statute limits the jurisdiction of the Court to only "the most serious crimes of concern to the international community as a whole." (23) Crimes within the Court's jurisdiction at the present time are genocide, crimes against humanity, and war crimes. (24) Additionally, the Court only has jurisdiction over crimes that occurred after July 1, 2002, the date the Rome Statute entered into force. (25) The jurisdiction of the Court is also limited to crimes either committed within the borders of States having ratified the Rome Statute or committed by nationals of States having ratified the Rome Statute. (26)
Cases can come before the Court in three different ways: referral by a State Party, referral by the U.N. Security Council, and by referral of the Prosecutor, with the latter known as "proprio motu initiatives." (27) For example, the Darfur case was referred to the ICC by the U.N. Security Council. (28) The Prosecutor must submit proprio motu initiatives to the PreTrial Chamber for approval before initiating an investigation. (29) Regardless of how a case is referred to the ICC, it must allege crimes defined in the Rome Statute.
One important step the Rome Statute has taken is the listing of gender-based crimes in the definition of crimes against humanity under Article 7. (30) Another important inclusion in the crimes covered by the Rome Statute is the conduct of private, non-state actors, coverage of which sets the stage for the Court to prosecute not only state-sponsored crimes, but also war crimes by private actors occurring as part of an internal conflict. (31) Importantly, this allows for individual liability during an intemal national conflict. (32) In addition, the principle of State sovereignty had previously provided immunity to States and their actors from prosecution for internal actions, because States and their actors were believed to have the right to conduct themselves within their respective borders in whatever manner they saw fit. (33) Thus, while the ICC represents a new and marked infringement on the principle of State sovereignty, it limits its infringement to grave violations of international criminal law. (34)
The Court may also, in some cases, rely on the U.N. Security Council to aid in enforcement of the Rome Statute, possibly through sanctions or military actions. This reliance would be particularly appropriate where the U.N. Security Council has passed a resolution referring a case to the ICC under the Rome Statute as it did in Darfur. (35) Additionally, the U.N. Security Council has the ability to compel cooperation of non-State Parties, such as Sudan, in investigations by the ICC. (36)
Once a case has proceeded to the investigation stage, it is the responsibility of the Prosecutor's Office to conduct an independent and comprehensive investigation of particular alleged crimes within the Court's jurisdiction. (37) In cases where there is strong evidence against an individual or individuals, the Prosecutor may submit an application to the Pre-Trial Chamber for the issuance of arrest warrants. (38) On the basis of an arrest warrant issued by the Pre-Trial Chamber, the Court requests the State having custody over the defendant to surrender that person to the Court so the case may proceed. (39) It is the responsibility of the State Party having custody over the defendant to enforce the warrant. (40) When a non-State Party, such as the Sudan, has custody, the U.N. Security Council may, upon the ICC's request and using force if necessary, compel the non-State Party to surrender a suspect to the Court. (41)
D. COMPLEMENTARITY
One of the most important and distinctive features of the ICC is the complementarity regime provided in the Rome Statute. (42) Under this regime, the Court is intended to function solely as a court of last resort when courts of the national jurisdiction where crimes occurred are unwilling or unable to genuinely investigate and prosecute those crimes. Such a failure may stem, for example, from political instability in the national jurisdiction or from a non-independent judiciary. (43) If the courts of the national jurisdiction are unwilling or unable to prosecute an individual for a crime covered by the Rome Statute, the ICC can prosecute that individual without violating the complementarity principle. However, if a nation and its courts are able and willing to prosecute an individual for such a crime, the ICC must defer to these national courts under the complementarity principle. (44)
E. OTHER ICC CASES
Since the Court's inception in 2002, State Parties have referred the ICC's three other cases to the Prosecutor's Office. One case was referred by Uganda, regarding crimes committed within its territory by non-State militias. (45) The investigation in Uganda has resulted in the issuance of five arrest warrants by the Pre-Trial Chamber. One of the persons named in the warrants has since died in combat; the other four have so far eluded capture, most likely because the Ugandan government lacks the resources to capture these suspects. (46) The second case was referred by the Democratic Republic of Congo (DRC), (47) and also involved crimes committed within a State's territory by a non-State militia leader. One of the suspects, Thomas Lubanga, was the leader of a militia within the DRC and is charged with conscripting children under the age of fifteen to militia service. In March 2006, the first successful arrest was made for prosecution in the ICC when Lubanga was captured. In addition, two more arrest warrants were also recently executed in the DRC for two additional suspects. (48) This DRC case is currently pending before the ICC. Finally and most recently, at the request of the government of the Central African Republic, the ICC has begun an investigation in that country. One arrest warrant has been issued by the ICC Prosecutor for crimes committed in the Central African Republic; this warrant was executed on May 24, 2008. (49)
III. U.N. INVOLVEMENT IN DARFUR
A. U.N. COMMISSION OF INQUIRY
In September of 2004, the U.N. Security Council responded to the violation of a ceasefire agreement between the government of Sudan and rebel groups by mandating that a commission investigate the situation in Darfur with urgency. (50) The U.N. formed the Darfur Commission to investigate the alleged violations of international law then occurring in Darfur and to recommend a response to the conflict. The Darfur Commission transmitted its Report to the U.N. Secretary-General in January 2005 pursuant to U.N. Security Council Resolution 1564. (51)
The findings of the Commission are comprehensive, examining all parties involved in the on-going conflict and the long-term historical background behind it. The primary parties involved in the armed conflict in Darfur are: (1) the Sudanese government and its associated organizations; (2) the Sudan Liberation Movement/Army (SLM/A); and (3) the Justice and Equality Movement (JEM). (52) The SLM/A and JEM are armed resistance movements participating in attacks on Sudanese government installations in an effort to undermine the central government's local authority and to acquire weapons for use in combat. (53) The government of Sudan, based in the capital of Khartoum, is a military dictatorship, having assumed power in a coup d'etat in 1983. (54)
The impetus for the attacks by the SLM/A and JEM is the marginalization and oppression by the central government of local tribal organizations in Darfur. (55) The tribal structure in Darfur has been the primary mechanism for land distribution and local governing decisions for many years. However, the Sudanese government decided to abolish the tribal structure and install appointed administrators to centralize the political organization of Darfur. (56) In or around 2002, the SLM/A and JEM began to organize attacks against the government positions, causing government police to retreat to the urban centers of Darfur and leaving the rural areas largely in SLM/A and JEM control. (57) In response to these assaults, the government of Sudan began to organize forces against the rebel militias. (58)
The Sudanese government has a regular military structure that is engaged in a protracted fight in southern Sudan for control of this oil-rich area. (59) The government forces in southern Sudan are insufficient in number, however, and are supplemented by militias. In particular, the government employs Popular Defense Forces (PDF), consisting of civilian volunteers, to aid and serve under the command of the regular armed forces of Sudan. The PDF are paid, equipped, and trained by the Sudanese government and take orders from within the military structure, although the members of the PDF are considered civilians. (60) Victims of atrocities use the term Janjaweed--translated variously as "a man with a gun on a horse" or "devil on horseback"--to describe militias such as the PDF or affiliated militias that serve the Sudanese government. (61)
The Darfur Commission focused considerable attention on the precise relationship between the Janjaweed and the Sudanese government. (62) The government gave the Darfur Commission conflicting reports about its relationship with the Janjaweed, frequently asserting that the Janjaweed are merely an independent group of bandits acting without any relationship to the government. (63) This, however, was contradicted by evidence showing that the government has been providing arms and funding to the Janjaweed, and, in some cases, even ordered the Janjaweed to attack civilians. (64) Victims and witnesses testified to the Darfur Commission that the Janjaweed acted in concert with and through the support of regular government armed forces, including receiving air support from them. (65)
In drafting its report, the Darfur Commission also analyzed a variety of international laws that are binding on the Sudanese government, as well as laws potentially applicable to the rebel groups. (66) The primary violations found by the Darfur Commission involved breaches of international human rights law and international humanitarian law, including war crimes. (67) Although it has not ratified the Rome Statute, Sudan is a signatory of the Rome Statute, and thereby is required to refrain from "acts which would defeat the object and purpose" of the Rome Statute. (68) This means that Sudan is bound to refrain from violations of human rights and humanitarian law such as genocide, crimes against humanity, and war crimes. (69) Sudan is also bound to numerous international treaties regarding human rights and humanitarian law. (70) By committing human rights violations within its territory, Sudan is failing to comply with its obligations under these treaties. (71) The Darfur Commission also found that the parties involved in the conflict in Darfur are bound by the customary rules of internal conflict. In particular, the parties must obey the rules regarding the distinctions between civilians and armed participants. (72)
The Darfur Commission was charged not only with identifying the violations of international law that occurred in Darfur, but also with identifying the perpetrators of the violations. (73) Among its findings regarding the crimes committed, the Commission determined there was evidence of the most serious violations of human rights and humanitarian law by the Janjaweed militia. The crimes included killing of civilians, massacres, rape, looting, and many other crimes against humanity and war crimes, conducted indiscriminately against villages and resulting in large numbers of deaths and displacement of civilians. (74) The Darfur Commission found that vast numbers of these violations were committed by the government and its surrogate fighters (i.e., the Janjaweed) as part of its counter-insurgency tactics against the SLM/A and JEM in 2003. (75) The evidence found in the Commission's report provided the U.N. Security Council with ample justification for further action.
B. SECURITY COUNCIL REFERRAL
In response to the Darfur Commission's report, the U.N. Security Council, in March of 2005, passed U.N. Security Council Resolution 1593 referring the Darfur case to the ICC Prosecutor's Office. (76) U.N. Security Council Resolution 1593 represented the first time that the Council referred a case to the ICC, and the first time that the Court attempted to extend its jurisdiction to the territory of a State that was not a party to the Rome Statute. (77) U.N. Security Resolution 1593 also required the Prosecutor's Office to give an initial update to the U.N. Security Council within the first three months of referral and every six months following the initial update. (78) Sudan has exhibited mixed reactions to the involvement of the ICC in Darfur, ranging from limited cooperation to outright opposition. (79) U.N. Security Council Resolution 1593 required the full cooperation of Sudan and any other States actively involved in the conflict. It also urged non-State Parties and regional organizations like the AU to cooperate fully in the Prosecutor's Office's investigation of the crimes. (80)
IV. ICC PROGRESS ON DARFUR
A. INVESTIGATION
Following the U.N. Security Council referral, the ICC Prosecutor, Mr. Luis Moreno-Ocampo, notified the Presidency of the ICC of the entry of the case in the Court's docket. (81) The Presidency assigned the case to Pre-Trial Chamber I for all pre-trial judicial decisions. (82) As part of its preliminary analysis of the Darfur situation, the Prosecutor's Office received the Darfur Report and the evidence gathered as part of that inquiry. Included in the Darfur Commission's documents was a sealed envelope containing the names of fifty-one people that the Commission determined were most responsible for the crimes committed in Darfur. (83) The Prosecutor opened the document containing the suspects' names with witnesses present and then resealed it to keep the findings confidential. (84) The Prosecutor's preliminary analysis consisted of a determination, pursuant to the Rome Statute, that the alleged crimes were admissible before the ICC. (85) In June 2005, the Prosecutor decided that sufficient evidence existed to initiate a full investigation. (86) Under the Rome Statute, the Prosecutor's Office is responsible for conducting an independent and full investigation of all crimes within the Court's jurisdiction. (87)
The Prosecutor's Darfur investigation presents unique challenges because it is the first time an investigation has taken place in the midst of an ongoing conflict. (88) In addition, because the investigation involves Sudan, a non-State Party, the Prosecutor must rely on Article 87 of the Rome Statute, which provides that specific ad hoe agreements for cooperation shall be reached in the case where a non-State Party is involved in an investigation. (89) As required under the relevant U.N. Security Council resolution, the Prosecutor has commented frequently on the varying levels of cooperation of the Sudanese government and other organizations. (90) Most recently, Sudan has indicated its unwillingness to continue cooperating with the Court. (91)
B. PROSECUTOR'S APPLICATION
The Prosecutor's initial investigation took approximately twenty months to complete, focusing primarily on the crimes which constituted the gravest offenses. At the conclusion of this investigation, the Prosecutor, on February 27, 2007, submitted the first Application for Summonses, or warrants, for two suspects involved in the Darfur crimes. (92) The Application included the various counts of crimes charged against the two suspects and the evidence supporting the charges. (93) The two suspects named in the Application were Ahmad Harun and Ali Kushayb. (94) Harun was the Minister of the Interior and head of the Darfur Security Desk for the government in 2003, when the majority of the crimes under investigation by the Prosecutor's Office occurred. (95) Kushayb, the leader of the Janjaweed militia in West Darfur, commanded thousands of personnel. (96) Of the fifty-one suspects transmitted to the Prosecutor, Harun and Kushayb are believed to bear...
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