Is Justice Slipping Off Darfur Agenda?

Escalating violence in Darfur and efforts by the international community to restore peace has dominated the news headlines this month.



Particularly prominent has been coverage of the first visit by the new UN secretary-general to the region and his thoughts on peacekeeping, political solutions and humanitarian aid. Noticeably absent, however, from Ban Ki-moon’s statements on Darfur has been any mention of the International Criminal Court, ICC, and the two arrest warrants it issued earlier this year for a Sudanese rebel leader and a government minister.



And it’s not just the secretary-general staying silent on the subject of the ICC, which also has outstanding warrants for Ugandan rebel leaders. In a recent editorial in Britain’s Times newspaper, UK prime minister Gordon Brown and France’s president Nicholas Sarkozy insisted governments must apply pressure over Darfur but said nothing at all about the court.



International justice observers interviewed by IWPR suggested these omissions are significant - though hardly surprising. They say world leaders are concentrating on plans to deploy the 26,000 strong UN-African Union peacekeeping force in Darfur where violence is escalating, malnutrition increasing and attacks on aid workers becoming more common.



“There has been a quiet calculation by the likes of Ban Ki-moon, by the British, by the French, that we can’t have both, the deployment of the force and the extradition of the men under indictment. The two are mutually exclusive,” said Eric Reeves, an American academic and expert on Darfur.



The UN-African Union force will replace the existing AU force which has been unable to stop the violence in Darfur where 2.2 million have been displaced and four million depend on humanitarian assistance. Aid workers there are coming under increasing pressure and according to the UN 55,000 people were newly displaced in the region between June and late August.



Sudan’s minister for humanitarian affairs, Ahmad Harun, is one of those indicted by the ICC along with Janjaweed militia leader Ali Kushayb, accused of coordinating violence against innocent civilians in Darfur.



Their arrest and transfer to The Hague was high on the agenda at a meeting last week between Ban and the court’s prosecutor, Luis Moreno-Ocampo.



“In my meeting with the secretary general of the UN, I stressed the need to execute the arrest warrants, to include this aspect in all discussions with the Sudanese government,” he told IWPR. “The government of Sudan has the obligation to arrest them and surrender them to The Hague.”



Moreno-Ocampo also expressed confidence that - despite their conspicuous silence on the ICC - Brown and Sarkozy would also put pressure on Khartoum. “France and the UK are major supporters of the court,” he said. “I’m confident that in all their contacts with the government of the Sudan and all their activities in support of the peace process in Darfur, they will ensure that justice and the enforcement of the ICC arrest warrants is an integral part of a comprehensive solution.”



But Richard Goldstone, a former member of South Africa’s constitutional court and ex-chief prosecutor at the tribunal for former Yugoslav, ICTY, thinks Moreno-Ocampo’s pleas that victims need both peace and justice are falling on deaf ears.



“It has been the exception rather than the rule that leading politicians have seen the importance of justice,” said Goldstone. “[The ICC] is not on their radar screens, and it should be.”



Goldstone, the ICTY’s first prosecutor, who issued indictments Bosnian Serb wartime leaders Radovan Karadzic and Ratko Mladic, said he would like to see “powerful democracies” putting more pressure on states to cooperate.



“America used its economic muscle to pressure Croatia and Serbia to give substantial cooperation to the ICTY. There has not been the same reaction with regards to the ICC. It has not been factored onto the radar of world leaders.



“I’m sure if the pressure was ratcheted up against [Sudanese president] Omar al-Bashir, it would make him a lot more wary about being complicit in war crimes in Darfur. There is no doubt about it.”



The ICTY’s current deputy prosecutor, David Tolbert, agrees his tribunal’s work became easier “when governments, like the EU and the US, got it and started to include us on their agenda”.



Tolbert believes that part of the problem for the Moreno-Ocampo and the ICC is a tendency by politicians to focus more on the immediate peace process in countries like Sudan and Uganda, putting justice to one side.



“A lot of leaders in the international community fail to understand this very important link between peace and justice,” said Tolbert. “But they can’t be separated. They are mutually dependent.



“If you leave the justice element out and don’t deal with the underlying causes of the conflict, you will see the conflict repeated.”



In Uganda, where the ICC has failed to execute arrest warrants against four Lord’s Resistance Army leaders issued two years ago, the indictees have fled to the neighbouring Democratic Republic of Congo and have said they won’t come in from the bush unless the warrants are lifted.



This has led to fears among some northern Ugandans just now returning home to their villages that fighting could resume and calls both locally and internationally for the warrants to be withdrawn in the interest of peace.



Reeves is among those who believes “that these warrants cannot be maintained at the expense of the people of Uganda” – particularly as the ICC was set up without any means of arresting indictees. He says pressure from world leaders for governments to make arrests is inappropriate.



“I can’t see how it is legitimate for international actors to simultaneously insist that the warrants be executed and not provide the means for them to be executed and also know the consequences of them being executed is the likelihood of [ the resumption of war] in northern Uganda and southern Sudan,” he said.



When asked about the issue of the court’s lack of enforcement muscle, a top ICC official returned to the issue of cooperation from the countries which support the court.



“The ICC doesn’t have its own police force. Its police force is 105 state parties [which signed the Rome Statute creating the court],” said Beatrice Le Fraper du Hellen, head of the Jurisdiction, Complementarity and Cooperation Division, JCCD, which secures government cooperation. “The ICC relies on the support of 105 member states.”



Tolbert goes further, saying those “who believe in international justice need to raise their voices together”.



“We need to hear other voices from the non-governmental community, from victims groups and others who stand with the ICC. There has to be pressure from all sides. Moreno-Ocampo can’t stand alone,” he said.



Lisa Clifford and Katy Glassborow are International Justice reporters in The Hague. Additional reporting by Samuel Okiror Egadu in The Hague