The conflict in Darfur has created a humanitarian catastrophe. The humanitarian conditions in the region have become a pivotal issue during the negotiations between the key parties of the crisis, supervised by external actors, such as the UN, the USA, and other governmental and non-governmental organisations. The GoS has been accused of committing human rights abuses against Africans in the region, using its Janjaweed militia as a means to quell the uprising, thus resolving the difficulties.
These crimes have been mainly classified within four categories: killing, burning villages, sexual violence, and forced displacement. Moreover, the Bush Administration and a number of civil organisations working in the humanitarian field went further, and classified the situation in Darfur as ‘genocide’ (Daly, M.W. 2007, p.
295), though this has been challenged by the UN and the European Union (EU).
In contrast, the GoS has refuted these charges and this description of the situation in Darfur. Simultaneously, it admitted a humanitarian catastrophe. In July 2008 the prosecutor for the International Criminal Court (ICC) issued a petition charging Omar al-Bashir with 10 war crimes against humanity and responsibility for genocide in Darfur (Wall Street 2008). A crisis between the regime in Khartoum and the ICC has arisen. Sudan has refused to comply with the ICC because it has not ratified the Rome Statute which created the court. However, the ICC stuck to its jurisdiction on the grounds that the file was referred to the court by the UNSC. A number of studies have been carried out on the Darfur Crisis in terms of its internationalisation, importance for international law, and humanitarian dimensions.
Babiker (2010) examined the Darfur Crisis in terms of its legal aspects and their impacts on both the peace and justice processes in Darfur. He addressed the capability of the Sudanese state to prosecute international crimes, such as human
36
rights abuses, war crimes, and genocide through assessing Sudan’s military and criminal laws from the substantive and procedural aspects. Additionally, he examined the key strengths and weaknesses of the recommendations in the report, issued by the African Union High-level Panel on Darfur (AUPD). Babiker affirms that Sudan cannot conduct this type of criminal prosecution, as its laws (whether criminal or military) do not meet international legal standards. Thus, the country cannot engage in such legal procedures. This position will ultimately lead to a supra-national criminal prosecution, when the Darfur matter is referred to the ICC (Babiker 2010, p. 82). Babiker importantly highlighted that shifting the Darfur issue to the ICC is not only an unfeasible step to peace, but that it may reduce the possibilities for achieving peace. Thus, it is argued by many that internationalising the Darfur matter and its referral by the UNSC to the ICC is purely driven by a political agenda, backed by superpower states, as an approach to put more pressure on the GoS and encourage it to accept a negotiated settlement that meets their national self-interests.
It is Alex de Waal’s (2008) conviction that referring the Darfur issue to the ICC through the UNSC is a victory in itself. The GoS has not cooperated to permit investigations or prosecutions to be thoroughly conducted. De Waal argues that the major cause for this non-cooperation is the deterioration in the relationship between Sudan and the west, due to the position of a near-complete collapse in confidence amongst them. The author observes that the Darfur issue has become highly politicised globally through the UN and several other means, such as the ICC, with a view to spurring the GoS into providing more political concessions (de Waal 2008, p.
34). De Waal arguably concludes that in light of the lack of trust between Sudan and western states, it is unlikely that the ICC would be able to proceed with investigations of war criminals (Waal 2008, p. 35).
Indeed, it can be strongly agreed that the Darfur Crisis has become enormously politicised, which has created real obstacles to progress towards a solution. However, the inability of the ICC to conduct a successful prosecution does not result only from procedural inability but also from a lack of jurisdiction. Furthermore, the ICC might be deliberately disrupted by its users, who are aware of its implications for global stability, whereby it cannot be used as a political instrument beyond that. Despite the need for harmonisation between political sensitivity and legal complexity relating to the Darfur issue, confusion between the constraints of legal and political interests
37
threatens international stability. As Al-sharif (2009) states, the inadequate approach which targets narrow self-interests without regard to the implications, will lead to chaos and threatens security and stability of global “law to be applied not to be employed” (Al-sharif 2009). Hamed
In contrast, the work of Mary T. Reynolds (2010) rejects the calls for delaying the prosecution of President al-Bashir, with the justification that allowing the prosecution to go further would serve to undermine the peace process in Darfur.
Instead, the international community should allow the prosecution, under the UN umbrella, to move forward which would then legitimise the ICC and strengthen international criminal justice. If prosecution did not go ahead, the ICC’s international reputation and credibility might be irreparably damaged. This can only occur through supporting the ICC in holding President al-Bashir accountable for his crimes, which will be a beneficial lesson for future leaders. Reynolds asserts that Omar al-Bashir is criminally responsible as a direct perpetrator and is involved in crimes against humanity in Darfur, and any delay in prosecution will send the wrong message to future leaders that there is a great possibility the ICC will hesitate in promoting future international criminal justice (Reynolds 2010, p. 179). Thus, it can be argued that the Reynolds’ contention contrasts with those who say that referring the Darfur issue to the ICC itself is essentially the wrong action.
Kwame Boateng’s view (2011) does not support the arguments presented by de Waal (2008) or Reynolds (2010). Boateng believes that the ICC is currently a meaningless instrument to deter killing in Darfur. He has drawn attention to the fact that the international community miscalculated when they perceived that issuing the arrest warrants, for Omar al-Bashir and his associates, would be an effective factor in preventing the continuation of criminal violence. Boateng states that the most effective action to end the massacre in Darfur would be to follow a policy to compel constraint, which could halt such actions. This type of policy could be achieved by deploying humanitarian military intervention to Sudan, authorised by the UNSC. He adds that if consensus between UNSC permanent members has not been obtained, consequently, the USA must consider unilateral intervention to forcibly disarm the Janjaweed militias, protect civilians in Darfur, and arrest members of the GoS, such as President al-Bashir, who refuse to comply with the ICC. Due to non-possession of the court to the proper coercive power that is able to halt the genocide in Darfur and
38
its inability to enforce its jurisdictive authority, the USA has unique capability to end the conflict in Darfur (Boateng 2011, p. 38). The ICC will not be able to end the conflict in Darfur, particularly in light of the US statute towards the legitimacy of the ICC. There is disagreement with Boateng’s belief in humanitarian military intervention as a solution to end the crisis, whether collective, by the international community, or unilateral, led by the USA. However, it is clear that in light of the USA’s aversion towards legitimising the ICC for fear of political motivations against its citizens, the USA would never lead such a humanitarian military intervention and undertake a policy of compelling actions to solve the problem in Darfur.
Zray Yihdego (2009) expressed a similar view. He concentrated on the criminal dimensions of the Darfur conflict through studying International Humanitarian Law (IHL) related to the process of protecting civilians and their possessions in Darfur.
The author investigated the nature of the conflict, the applicable rules, and to what extent those rules are compliant, and the weaknesses and strengths of the responses of the international community in providing physical protection to civilians. He found that despite the gains that might be achieved from putting a great responsibility on all parties of the crisis as well as relying upon the regional approach to prevent violence and humanitarian abuses against the civilian population in Darfur, further and timely global action must be taken by the international community. Yihdego declares that urgent global action is necessary from the international community. He maintains that besides Sudan’s failure to react appropriately, the international community has also not done enough to respond adequately to the crisis. The author claims that to prevent further atrocities in Darfur concentrated, adequate and timely international action is necessary (Yihdego 2009, p. 1). Thus, Yihdego, on a small scale, focuses on the IHL and its applicable rules in the Darfur case. While the IHL could be rightly applicable to Darfur, especially those related to crimes against humanity, Yihdego did not beneficially address the impacts and implications of referring the issue of Darfur to the ICC on the conflict’s duration.
An article by M. Rafiqul Islam (2006) addresses another angle of the problem. He highlights the international legal position of internally displaced persons (IDPs) within the framework of the humanitarian crisis taking place in Darfur. Through this study the author has attempted to examine the development of international legal and institutional frameworks for IDPs by addressing the problem through its legal
39
identity, rights, humanitarian assistance, and protection in international law. Islam upholds that the provision of basic needs and aid to victims, following enforced displacement, is meaningless and not an effective approach to overcoming the issue.
He adds that responding to the needs of the displaced does not succeed in crisis management. The author states that the Darfur Crisis can be settled in a political or diplomatic manner, but that this can only offer a short-run solution to stopping an internal displacement crisis. Also, Islam attributed this to a lack of appropriate international processes of legal accountability for the artificial creation of a massive human tragedy in Darfur and the failure of Khartoum to contain and end the crisis.
This failure will continue to challenge the wisdom inherent in the UN protection of human rights for all and solicit world attention to uphold the elementary consideration of humanity. Islam concludes with emphasising that the issue of internal displacement should be addressed as an integral part of the international protection of human rights and the enforcement of humanitarian law (Islam 2006, p.
354).
With regard to the complicity that has been made by referring the Darfur issue to the ICC through the UNSC, Mohamed Abou El-Fadl (2009) notes that many neighbouring countries are development obsessed, whether they have direct interests in Sudan or fear the repercussions of their neighbour’s inner turmoil. This is especially the case if development refers to a new pattern of international interactions in dealing with the internal and regional issues that would lead to more difficulties and obstacles that reduce the likelihood of a resolution. Abou El- Fadl highlights the fact that the GoS has committed a number of grievous errors which have impacted the ICC’s operation. These are not only related to the human rights abuses committed against the people in Darfur, but also to some political actions (see Abou El- Fadl 2009, p. 236). The complexity of the crisis dramatically increased after the UNSC referred the issue of Darfur to the ICC in decision number 1593 issued on 31st March 2005, to consider charges of war crimes against humanity committed by the Bashir regime in Darfur. The crisis worsened while Sudan refused to be subjected to, and to responds to, these resolutions. On 14th July 2008 an arrest warrant was issued by the ICC’s Chief Prosecutor Luis Ocampo for President al-Bashir – the first arrest warrant against a serving head of state. This development might significantly influence the expected duration of the crisis.
40
Given the existing body of literature concerning the international and humanitarian law dimensions of the Darfur Crisis, it is clear that there are differences among the scholars in their perspectives regarding the impact of the ICC on the path of ending the crisis. While some view referring the Darfur issue to the ICC itself as a victory, others believe that the Darfur and its resolution is an internal affair. In addition to that, they argue that referring it to the ICC through the UNSC is an attempt to politicalise and prolong the conflict. Seemly, the crisis between Sudan and the ICC is a clear reflection of the extent of the impact of external actors on the development of the Darfur Crisis. Furthermore, it reveals a lack of agreement among all involved parties on the priorities required to close the Darfur file. However, the approach of the international and human law dimensions has limited benefit in terms of having a comprehensive understanding. This approach is relatively useful for gaining a clear view about the international intervention and the different attitudes of some important international actors towards the crisis, as well as how the Darfur Crisis has become highly politicised internationally, with a wide range of instruments being deployed by the UN and other western states to put pressure on the GoS and to promote an array of policy objectives. However, it is unlikely that this approach will be able alone to provide a full perception to the impact of the dimension of the external intervention of the crisis.