Arguing for an integrated approach to resolving the crisis in Darfur: the challenges of complementarity, enforcement, and related issues in the international criminal court.

• Author: Totten, Christopher D.
• Position: Symposium on Redefining International Criminal Law

1. 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.

2. 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)

   1. 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)

   2. 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)

   3. 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...