Sudan and the ICC

As noted previously the Security Council has passed Resolution 1593 and referred the situation in Darfur to the International Criminal Court. Prosecutor Luis Moreno Ocampo has acknowledged receipt of the referral and is investigating the matter. Resolution 1593 does not charge particular offenses, and so it is interesting to try to predict what course the investigation will take. My sense is that genocide might be harder to establish than many would like to think, and so I suspect that there will be more charges of war crimes and crimes against humanity than genocide.

The conventional wisdom that the mass murders taking place in Sudan are acts of genocide may not be so easy to establish legally. The key component of genocidal murder is that the intent of the perpetrator must be to "destroy, in whole or in part, a national ethnic, racial or religious group". That is from the definition of the crime used in the Genocide Convention (Art. 2) as well as in the Rome Statute (Art. 6). So where's the problem? The Sudanese government has held the position that the killings have not been motivated by racial, ethnic, or religious hatred, but by outside interference and economic underdevelopment. The killers, they argue, would kill indiscriminately, those inhabiting the lands that they seek; it just so happens that those inhabitants share a racial, ethnic, and religious identity. So if I set out to kill all of Chicago's cab drivers, it might look like genocide because a lot of cabbies here are of South Asian descent, but it would actually not be genocide because the killing was motivated by a hatred of bad drivers, regardless of their ethnicity.

That sounds pretty absurd to many, I know, but it cannot be dismissed outright, in my opinion, because it explains the reluctance of governments to act given the responsibility that arises once genocide is determined to be taking place. Jus cogens, or customary international law, provides very few clear rules. One is that pirates are bad, and so is slavery, and another is that genocide must be stopped. For crimes such as these, all nations share a right and an obligation to prosecute offenders, regardless of jurisdictional barriers that might otherwise exist.

So in other words, a finding of genocide requires action by the community of nations, action that is costly in human and economic terms. This is one of the reasons why we saw so much debate leading up to the adoption of SCR 1593, and why the resolution as adopted does not make a finding that genocide has taken place. Another sore point in the debate was U.S. opposition to the I.C.C., which threatened to derail any resolution referring the matter to the new court at The Hague. A compromise was finally reached, SCR 1593 reserves jurisdiction over non-State Party nationals for their national courts, and the U.S. abstained from the vote.

A final thought came to me on this matter, but I won't dwell on it because I have nothing to support it: could it be that the U.S. has been so quick to label the crisis a genocide because it knew that a reluctant U.N. would look bad by not acting? Anyone weary of attributing such motives to the current administration might remember that Mr. Bush is trying to make John Bolton our next representative to the world body...