A nightmare for Intl Law: The prosecution of Darfur war crimes suspects

By Chuei D. Mareng

April 30, 2007 — When we look at what is going on around the world these days, it does
seem that there is some kind of global court, but in reality it is a
nightmare. If anyone ever wondered about uncertainty in life, this is
what is happening to international law. The question that should be
asked here is this: Will international prosecution bring fairness of
justice to Darfurians? The answer is probably not; this is because
international law is full with interest processes than the legal
processes. I am a personal who believe that the rule of law is better
than the rule of any individual state; but at the movement, it seems to
me that there is no clear distinction between the international law and
international relation policies. Since everybody knows that there are
no international police forces that would enforce the judgments of
major international law applications. But in my view of international
politics, I do personally believe that the United Nations Member States
are the judgments of these kinds of policies in international
relations. We have seen from the practice reality that international
law was initially promoted to resolve problems that the UN Member
States faced when dealing problems in international affairs by which
international court would be an instrument for legal processes to
settle international disputes.

The implication of the proposed court however, was that the
international court would be subjected to the Security Council’s normal
voting procedures including the veto rights of the permanent members
and this has great consequences in achieving fairness for those who
wanted justice. I do personally believe that it is everybody interests
to have a court like international court, but the actions of the UN
Member States are much worsens now than the international court could
have apprehended and this has made it difficult for the international
court since the court cannot re-try cases that have been pursued by a
member state. As we have seen from several actions that nation-states
have taken in international relations. All actions taken by the UN
indicated to us that all the UN Member States seem to put their
interests above all everything else and this has reinforced continuing
debates among the scholars of international law and international
relations concerning the validality of the court.

Relatively, a debate regarding an action that is needed to be taken by
governments or international agencies has always been a concerned in
international relations because of implications that usually blocked
initiatives. With this implication, it is clear that the litigation for
the Darfur’s war crime accusers or crime against humanity will not be
easy because international law does not have teeth to hold any Sudanese
government officials accountable for the crimes committed in the Darfur
region since that government is still holding power. We have witnessed
from an official report given to the UN Security Council which
indicated that the Sudanese government and Janjaweed were responsible
for serious violations of international human rights and humanitarian
law, both crimes under international law, but the Sudanese government
is disputing these charged. Given this confirmation however, the
Sudanese government is not yet convinced that its has committed a war
crime or crime against humanity in Darfur. Their denials could be seen
from the number of speeches that the Sudanese government officials have
made. One example of these speech denials would be the Sudanese
President’s speech in which he said that the outsiders will not
prosecute any Sudanese national, but in reality, the national law will
not prosecute those accusers. In these speeches however, there is no
doubt that those who had linked with the government which perpetuated
these crimes in the first place will not be touched. But those with no
great link to that government will be used as a scapegoat to appease
the international community. This will be done by the Sudanese
government to ensure that they have at least comply with international
law and even though the officials are very much aware that their
actions is inconsistence with international law. This inconsistence is
a part of the discrepancy of the international law application that has
been a great problem in the world.

This discrepancy has been particularly based on the two doctrines of
international law that have been debating back and forth. These two
doctrines have occupied most of the legal scholars’ debates when they
looked at international law application in international affairs.
Indeed, there is a clear obligation under the international law that
the UN Member States are required by its to protect those under threat.
This idea of protection was a focus of International Court in which the
court would prosecute those who have violated international law by all
means. However, there are reasons to believe that the world is still
apart from the reality before we could come closer to the global court
that will protect human beings’ pure life if it has been violated
anywhere in the world. These two doctrines of international law are
dualism and monism. Thus, these two concepts could be related to a
speech made by the Sudanese President and what these two doctrines say
about the international law application. From the scholars of
international law debates, dualism is a theory that seeks to
incorporate and transform international conventions into domestic laws,
while monism is a theory which assumes that there is oneness in regard
to interpretation of international conventions. Oneness is a philosophy
which assumes that there is only one whole such as body and mind and no
separation between the two. On the other hand, dualism is a philosophy
which assumes that there are differences between mind and body. This
distinction was made because many countries have reserved their
supports or rejection to international court and the United States of
American is one example of these states. This indicates that powerful
states had always claimed human rights violations when it is in their
national interests, but do often forgot the gravity of atrocities that
states committed against its subjects.

The controversies over the atrocities committed by states had always
been the greatest issues in geopolitics in which national interests had
played significant roles. There is no doubt that nation-states had
remained a major problem that blocked all the actions intended by the
UN Security Council. Despite all these human rights violations in
Darfur, the Sudanese government is still insisted that its has not
committed any crime that their persons could be prosecuted by
outsiders. A good example of this was a claim made by the Sudanese
Second-vice President who said that: “What is being reported about of a
trial of some individuals or officials in courts outside the Sudan is
something we will not accept as a government.” This quotation reflects
what was said earlier that the Sudanese government’s power will prevent
outsiders from paving the way to solutions of the problem. In my view,
there is no doubt that the trial of the Sudanese officials or
individuals involved in the Darfur’s war crimes or crimes against
humanity will not take place unless the UN changes its attitude towards
the Sudanese government. This argument was made due to fact that some
of the UN Members States are still doing business with the Sudanese
government and these member states do not want their business being
jeopardized by any action taken by the UN. The Sudanese government
supporters from the Security Council are doing their best to prevent
the UN from taken any action and even though there are grave violations
of human rights in Darfur, there are no much concerned to these member
states. We have seen from the facts that several governments or
authorities around the world had killed many innocent people, but the
international law had provided no justice.

Apparently, the Khartoum government has been trying very hard to
prevent the UN Security Council from passing a resolution that would
allow the referral of the accusers to the International Criminal Court.
For example, Former Sudanese Foreign Minister has said that: “We will
never hand over any Sudanese national, whether he is an outlaw, an army
officer or a government official, for a trial outside of Sudan.” This
quotation has clearly shown that the Sudanese government is not
interested in a justice process outside its territory. Even though the
Sudanese government has claimed that it will prosecute 164 people for
the human rights abuses in Darfur. I am very skeptical about these
prosecutions because there are no procedures spelled out about the ways
in which this prosecution will satisfy the need for justice in
addressing crimes committed in Darfur. Another example was a statement
made by the leading cleric from the Sudanese ruling party who claimed
that: “We will not allow any arrest or trial of a Sudanese official,
unless they will arrest the 30 million Sudanese people and try them.”
The statement continues that: “The International Court of Justice is
used as a tool to exercise the culture of superiority and impose the
culture of superiority.” From these quotations, it could be seen that
the Sudanese government is using all available means to draw more
support from its citizens, especially extremists who believed that
international law is a concept of western and has nothing to do with
other nations. From this contributor’s point of view however, there are
reasons to belief that international court is only a court that could
settle the Darfur’s problem. But the solution will not be found easy
since the government that committed crimes against humanity and war
crimes is still in power. I do personally believe that the Darfurians
will receive the fairness of justice when the current government that
committed these abuses is not exited anymore.

It is in view of this contributor that the actions of the Khartoum and
Janjaweed had indicated that they did not fear prosecution under a war
crime and crime against humanity, for that matter, they acted with
impunity for international law. It was obvious that the Sudanese
government was paying international demands lip services, for instance,
by claiming that they were disarming the Janjaweed, but in reality they
were simply folding them into the official government military. As just
we have seen in Rwanda crisis of 1994, it is clear that international
bodies lack the will to act to prevent crimes that are perpetuated by
states and even though these states are signatory of international law.
Although many states have agreed that international court will
exercise legal positions like in any court at the national levels, this
has not been possible. Arthur has noted that: “The International Court
of Justice is strictly bound to address legal disputes exclusively, or
address these in a legal manner and from a legal viewpoint, but clearly
legal and political implications can never be wholly separated.” This
citation indicates that international court is supplemented by the
political will from parties involved in the legal process in
international level. We have seen from the international prosecution
when the former Serbia leader, Slobadan Milosevic when he was taken to
The Hague. Even though Milosevic has been at The Hague for a number of
years, he did completely refuse to accept the jurisdiction of
international court. Another example would be the Rwandans tribunal in
which many accusers were brought to court, but may be only 10% of the
perpetrators have been charged with the crimes that they have
committed.

It is very clear from the real actions in international affairs and
many scholars may know much that the international court of justice
specifically was set up to bring individuals to justice, including
heads of state for war crimes or crimes against humanity. The
behaviours of some countries like Sudan are being reinforced by the
behaviours of some strong states like the United States of American
that had refused to be part of this international court. How would the
international court works since some of the UN Security Councils are
not part of this process? This is why some states like Sudan are not
willing to handover their national to international court. I do
personally believe that it will take generations of this world to
really accept the need of international court; this means that in our
times international court is not yet possible because we are not yet
ready for a global court. This is due to the fact that international
court is merely political court and not legal court in which victimizes
could smell the fairness of justice. Based on the amount of evident in
Darfur, there is no doubt that the Sudanese government should have been
forced to accept the international court and even though its has not
ratified the international court treaty. The international prosecutors
should have all means to get the Sudanese government officials to
comply with international law since it is a law of protection.

Given the evident on the ground, atrocities in Darfur are genocide
crimes that international court should have forced its jurisdiction and
not the Sudanese government wishes. Elise Keppler notes that: “The
atrocities in Darfur have been unspeakable. The Janjaweed militias,
with the active backing and participation of the Sudanese government
forces, have looted, raped and massacred. As part of an ethnic
cleansing campaign, they have burnt villages and committed crimes
against humanity. More than one and a half million people have been
forced from their homes.” This citation indicates that the Sudanese
government will indeed struggle up to the last minute of their power in
order not to handover their suspects to international prosecution for
the crimes they had committed in Darfur. This is due to the fact that
those who had been accused of war crime or crime against humanity are
member of the current government and this is why the case of Darfur is
a nightmare for international law. And even though there has been some
progress, as the Human Rights Watch claims that prosecutors have
brought the cases against two Sudanese militant leaders for atrocities
committed in Darfur. I am still skeptical about the Human Rights
Watch’s optimism because Sudan as a sovereignty country has not yet
given up its rejection of international court.

The optimism by the international agencies seems to contradict the
Sudanese government positions when it comes to litigation of the
accusers. From this researcher’s point of view, the Sudanese government
will do whatever it takes to prevent international court prosecutors
from getting the information they need to precede with legal action. It
is clear from the actions taken by the Sudanese government officials
that international court will not be possible because Sudan is not
working alone, but being supported by some of the UN Member States that
had more interests in Sudan’s oil or new opportunities in the country
since a peace was signed between the South and North two years ago.
Indeed, given the gravity of atrocities in Darfur, the UN Member States
are obligated by the convention to act in away that will preserve the
application of international law, but that has not been applied. It is
in the view of this researcher that the Sudanese government has an
obligation to respect, protect and fulfill the human rights of those
within its jurisdiction, but the Sudanese government seems to be
killing its own citizens. If I can remember very well that Sudan is a
member of states that are a signatory to the Rome Statute of
international criminal court, this means that the Sudanese government
is bound to work within the law or face punitive action from the UN
Member States. Thus, in technical aspects of international law however,
the Sudanese government seems to be working outside that signatory, but
nothing had been done by other member states of the UN. In the view of
this researcher, the UN Member States are solely judgments of
international relations and therefore their failure to response to
Darfur’s problem was all member states ignorance. It is in the view of
this researcher that the victims of the Darfur’s atrocity will
eventually received fairness of justice when all international
communities come together to enforce the rule of law. I am also worried
that the way international prosecution is taking place, I am afraid
that there will be no some productive results since some of the UN
Security Councils are still doing a successful business with the
Sudanese government. In this regard, I do personally view that we must
separate the law from interest in order to achieve the international
protection that was a spirit by which the UN was established.

* The author is a Sudanese national and a researcher currently living in
Canada. He can be reached at [email protected]

References:

Arthur Eyffinger, Legal and political acrobats: The fate and future of
international court of justice. International Health, Vol 27 (1).
Spring 2005, online.

Elise Keppler, Grave crimes: Darfur and the international criminal
court. Human Rights Watch Organization. January 2005, online.

Hugh M. Kindred and al., International law: Chiefly as interpreted and
applied in Canada (6th ed.). (Toronto: Emond Montgomery Publications,
2000).

Human Rights Watch, ICC prosecutor identified first Darfur suspect:
First case ICC case on Darfur brings justice closer to victims. Human
Rights Watch Organization. February 2007, online.

Rosalie Balkin, “International law and domestic law.” In Sam Blay, R.
Piotrowicz, and B. M. Tsamenyi (Eds.), Public international law: An
Australian perspective. (Melbourne: Oxford University Press, 1997).