Claudio Guler

“Impunity? Where?”

ICCSN Basel: What was the position of the US towards the establishment of an International Criminal Court at the Rome Conference in 1998? 

Claudio Guler: It was always unlikely that an international criminal court would emerge from the Rome Conference in 1998 that Washington would find agreeable. The grounds for the aversion are manifold. They largely revolve, however, around questions of sovereignty and state power within the international system.

Among other misgivings, US policymakers are concerned about the potential for politicization of the Court. They also fear the possible legal ramifications for US citizens and members of the US armed forces in particular. The latter, unlike those of any other state today, operate (and have obligations) in almost every corner of the world. In theory, and if working properly, the American military justice system, a system founded on the same law of war principles as the Court, holds its soldiers to the international standard. In practice, accountability for top ranking military and civilian personnel often remains wanting. Lastly and more generally, the US was at the time of the Rome Conference in 1998 and remains today, the sole superpower. Super and great powers guard their sovereignty jealously, because they can. Subscription to a supranational criminal court serves few rational purposes from a power-maximizing strategic point of view.

At the Conference, the US, making use of compromises intended to induce it to join the Court proffered by advocates for an autonomous institution, managed to secure a UN Security Council referral mechanism for non-state parties.1 The US could hence use the Court – unless checked by another permanent member – to target weak adversaries, while protecting itself via its veto.

In contemporary international criminal justice, power relations and understanding their role is paramount. Although execution of the law by international jurists is largely consistent and objective, the essential prerequisite, jurisdiction, is often arbitrary and deferential to power. This is not to suggest that weak actors suspected of committing egregious crimes are not culpable and deserving of prosecution using an objective lens. It simply means that a double standard, upheld by the great powers, exists.

The power calculus aside, the values and principles embodied in the Court and its charter are those of the Western-led liberal international order. So US accession in the long run is not out of the question. Again, the relative political, military and economic decline of the US will likely have to progress substantially though, before accession becomes a viable option.

The Court and the Rome Statute do enjoy a support-base with deep roots in the US. The largest delegation to the Rome Conference was the American one. It played a largely constructive role. US-based civil society and academic groups and experts made important contributions.2 Ambassador at Large for War Crimes Issues David Scheffer represented the Clinton administration at the Conference, and later signed the Statute on behalf of the President. Citing ‘significant flaws,’ however, President Clinton never submitted the treaty to the US Senate for ratification – a still insurmountable hurdle in its own right.3

ICCSN Basel: In February 2011, the US supported UN Security Council Resolution 1970, which refers the situation in Libya to the International Criminal Court. In 2005, the US supported the Security Council referral of the situation in Sudan to the ICC. However, it still has not ratified the ICC Statute and does not (yet) accept (complementarity) ICC jurisdiction on its territory or over its nationals. Why? 

CG: Ghaddafi in Libya and Bashir in Sudan are the weak actors. Both countries have limited strategic import for the US, and Washington clearly prefers regime change here but does not intend to expend its own resources.

Bashir is a nuisance for Washington. President Bush and Colin Powell, his secretary of state, both characterized the crisis in Darfur as genocide, elevating its profile. Military intervention, with an overstretched force in Afghanistan and Iraq, was off the table. An ICC referral in Bush’s second term, one far more hospitable to international law, was a good way to be seen as ‘doing something’ on an otherwise neglected humanitarian catastrophe.

Ghaddafi is likewise a nuisance for Washington. With the outbreak of civil war in Libya and threats by Ghaddafi to commit systematic violations of human rights, President Obama seized the opportunity to follow the British and French lead to show renewed US support for human rights after the Bush years and to put America ‘on the right side of history’ in the Arab Spring.

Additional, less cynical factors also pushed the US to make use of the Court in these cases. Most significantly, the US has an extensive legacy of backing international criminal tribunals, including at Nuremberg and Tokyo, and for Rwanda, the former Yugoslavia and Sierra Leone.

An insightful question is why China refrained from blocking either referral? One explanation is that notions of human rights and justice are increasingly universal, and as such command respect globally. This sets the stage for the concept of a normative tidal wave. China, notwithstanding its significant oil investments in both countries, likely withheld its veto because doing so would make for bad press that the added benefits of increased short-term stability and slightly easier access to oil could not outweigh. The US is likewise bound by expectations of fair and just behavior, especially in light of its frequent rhetorical appeals to them.

This is the light at the end of the tunnel for international criminal justice advocates. If you build the institutions, find the stakeholders and start the wheels turning, eventually the soft power, normative tidal wave of international justice might just overwhelm the fortifications of the great powers; ending impunity once and for all. An aspiration not to be overstated in my opinion, as great powers are likely to remain very powerful for a long time to come, with momentum accruing, staying outside of the Court does carry risks, and complicates a state’s ability to shape the Court and its actions in the future. As the saying goes, “If you’re not at the table, your probably on the menu.”

ICCSN Basel: A February 2011 report from Amnesty International (USA: See no evil. Government turns the other way as judges make findings about torture and other abuse, available at www.amnesty.org) concludes that “a number of federal and military judges have now made findings in relation to torture or other ill-treatment in the context of habeas corpus or military commission cases of former or current Guantanamo detainees”, but that no ” impartial investigations directed toward prosecutorial action” are taking place to follow up those findings. Is the Obama administration taking action in this regard? 

CG: Not really. He has ordered a stop to the use of ‘enhanced interrogation techniques’ (aka torture). He tried to close Guantanamo Bay prison but failed. He suspended military commissions, hearings in which due process rights are exceedingly pliable. And soon thereafter reintroduced them with tweaks.4 So I guess he’s trying not to make things worse.

As concerns the past, however, based on what I know, the Obama administration has systematically turned a blind eye to allegations of illegal interrogation practices. The US has ratified the Convention against Torture.

Former president Bush and vice president Cheney boasted publicly about their decisions to authorize torture.5 The judicial findings in the Amnesty report are concerning. And coming from a reputable source, they merit closer scrutiny.

President Obama and company do not want to rock the boat, however; highlighting instead the importance of looking forwards, not backwards. A wholesale probe into these and similar allegations would unleash a political firestorm. It’s political suicide. In all likelihood, Obama could not fend off the charges of politicization. And the move would further polarize an already troubled country suffering the steady drumbeat of an economy in secular decline. So politically, it’s just too hot a potato to handle. But fear not, a token gesture has been made: Special Prosecutor John Durham has a mandate from the President to investigate allegations of torture. The catch is, he keeps coming up mostly empty-handed.

Two lawyers who wrote intellectually dubious legal memorandums in support of the Bush administration’s use of ‘enhanced interrogation techniques,’ John Yoo and Jay Bybee, have gotten off with a slap on the wrist.6 Neither was even disbarred.7 Ditto Major General Geoffrey D. Miller, the man who brought ‘enhanced interrogation techniques’ to Guantanamo, Abu Ghraib and Afghanistan.8 Obviously, former Bush administration officials are immune.

In the US, courts apply the law but do not commence prosecutorial actions. Hence even if they make findings of illegality, it is up to the executive branch to bring charges. As the Amnesty report details, the administration sidesteps argumentation of evidence suggesting

the use of torture wherever possible, invokes the state secrets privilege when necessary and otherwise generally desists from taking action.

Many of these allegations come from military commissions and related habeas corpus cases. The US Supreme Court has attempted to ban military commissions and grant prisoners at Guantanamo Bay due process rights several times.9 Congress, however, simply passes legislation to circumvent the rulings’ effects.10

In sum: The courts can’t prosecute. The executive doesn’t want to. And the legislature fully backs the executive, at least on this one. Impunity? Where?

What advocates of international criminal justice have left as recourse then is stigmatization. Name and shame the perceived offenders. Add on to the normative tidal wave and hope that someday it becomes inescapable. That, in a nutshell, is what Amnesty does.

ICCSN Basel: At the Kampala Review Conference in June 2010, States Parties to the ICC Statute reached a consensus with regard to the crime of aggression. They consented on definition of this crime as well as on the conditions for the exercise of ICC jurisdiction over it. Whether ICC jurisdiction over the crime of aggression is activated is subject to a decision to be taken after 1 January 2017 by at least two-thirds majority of States Parties (art. 121 ICC Statute). Did the US play an active part in this Conference, and does the outcome have an impact on the US position towards the ICC? 

CG: The US was present at the Kampala Review Conference. Following the adversarial Bush years, the Obama administration, represented by Ambassador at Large for War Crimes Issues Stephen J. Rapp, used the opportunity to further reset the US-ICC relationship. The meeting was only the second Assembly of States Parties (ASP), the governmental body that oversees the Court, that the US participated in. The other was the year before. The Bush administration refused to take part in any ASP.

In 2009, Ambassador Rapp led the Obama administration’s policy review on the US-ICC relationship with an eye toward identifying a cooperative way forward. He noted, however, that US accession was unlikely for the “foreseeable future.” Secretary of State Hillary Clinton lamented in 2009 that US absence from the Court was a “great regret.”

Despite its participation as an observer to the Kampala conference, Washington did not achieve its primary objective: blocking adoption of the crime of aggression. The outcome gives rise to some food for thought: Have ASP members given up on seeking to accommodate the US, as they did in Rome twelve years earlier? Is this a sign of declining US influence? Harold Koh, State Department Legal Advisor, framed his concerns in the run-up to Kampala by asking whether adopting the crime of aggression “will truly strengthen the Court at this critical moment in its history?” Other US experts took issue with the definition of or jurisdictional mechanisms for the new crime.11 Others still, encouraged by Benjamin B. Ferencz, the last surviving member of the Nuremberg prosecutorial team, urged adoption.

Although the new crime of aggression is probably a net negative for US public opinion and Congress, it is unlikely to affect substantive US policy much. Even after 2017, the Rome Statute contains an ‘opt out’ clause that may allow the US to join the Court but still remain immune from the new regime.12

Considerable confusion surrounding exactly how this all plays out in practice remains.13 Hence, the Obama administration is likely to maintain a ‘wait and see’ approach. I nevertheless expect it to continue to cooperate with the Court and to provide it with rhetorical support.

Interview: Kathrin Betz 

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1 Schiff, Ben. Building the International Criminal Court. New York: Cambridge University Press, 2008; page 71, 170.

2 Schiff, Ben. Building the International Criminal Court. New York: Cambridge University Press, 2008; page 71, 170-181.

3 http://www.amicc.org/docs/Clinton_sign.pdf

4 http://www.salon.com/news/opinion/glenn_greenwald/2009/05/15/military_commissions

5 http://www.csmonitor.com/World/terrorism-security/2010/1109/In-interview-about-Decision-Points-memoir-Bush-stands-by-waterboarding | http://abcnews.go.com/Politics/t/story?id=6464697&page=1

6 http://www.salon.com/news/opinion/glenn_greenwald/2008/04/02/yoo | http://fl1.findlaw.com/news.findlaw.com/wp/docs/doj/bybee80102mem.pdf

7 http://balkin.blogspot.com/2010/02/justice-department-will-not-punish-yoo.html

8 http://www.nytimes.com/2006/08/03/opinion/edit-3-thu.html?ref=geoffreydmiller

9 See Rasul v. Bush, Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, Boumediene v. Bush.

10 See Detainee Treatment Act of 2005, Military Commissions Acts of 2006 and 2009; also http://www.fas.org/irp/offdocs/eo/mo-111301.htm

11 http://www.isn.ethz.ch/isn/Current-Affairs/Security-Watch/Detail/?lng=en&id=116618

12 http://www.amicc.org/docs/AggressionQA.pdf

13 http://www.ejiltalk.org/what-exactly-was-agreed-in-kampala-on-the-crime-of-aggression/

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Original Print: http://www.iccsn-basel.ch/index.php?option=com_rokdownloads&view=file&Itemid=96

As the International Criminal Court (ICC) starts an investigation into its most high-profile suspect yet – Libya’s “Brother Leader” Muammar Gaddafi – politicians in a far more democratic country, 2,700 miles to the southeast, are also looking to evade the long arm of the law.

Kenya became the 98th member of the International Criminal Court in March 2005, when it ratified the Rome Statute. Over the past three months, the ICC has issued Kenya with summonses for the ‘Ocampo Six’: six individuals, both in and out of government, deemed by Chief Prosecutor Louis Moreno Ocampo to be those most responsible for the post-electoral violence that unfolded in 2007-08, leaving an estimated 1,500 people dead.

Is it really necessary for the ICC to be involved? Could Kenya not prosecute those involved on a purely domestic level? Yes, it could: but only with an adequate institutional framework in place. The Rome Statute provides for the legal principle of complementarity; that is, legitimate local efforts at justice enjoy primacy over international efforts. Politicians in Nairobi, however, have botched various attempts to establish a local tribunal, or to reform their judicial system. Imenti Central MP Gitobu Imanyara has spearheaded the campaign to establish a local tribunal that would meet international standards – in essence, removing the need for ICC involvement. A copy of his bill can be found here. Three attempts to pass the legislative text – February 2009, August 2009 and February 2011 – were, however, defeated as a result of parliamentary infighting.

As a result, the Ocampo Six have all but assured themselves lengthy sojourns behind bars, if brought to trial and convicted by the ICC instead of domestically. The upside for Kenya and its people, who, thanks to a remarkably vocal and independent press, have access to quality reporting – and broadly back the ICC as they don’t trust many of their own leaders’ commitment to justice – is that the intervention stands to seriously curb impunity.

Now, astonished that Mr Ocampo hasn’t given up, some Kenyan politicians from the PNU faction have taken to lobbying the US and the UN for an Article 16 one-year deferral of the investigation. The Parliament also passed a conspicuously desperate vote calling on the country to withdraw from the ICC. This would not halt the ongoing investigation though, even if enacted into law. Indecision has cost the ‘Ocampo 6’ any hope, however slight, of bending the administration of justice.

On a tangential note, it is worth briefly comparing Washington’s supportive stance (however morally justified) on the Kenya, Libya (a potentially significant precedent-setter) and Darfur dossiers with its own arms-length conduct presently, and downright hostility under President Bush, vis-à-vis the ICC, as the exercise exposes its application of double standards. For that matter, so do Beijing and Moscow’s positions on Darfur and Libya. But great powers don’t subject themselves to the rule of law; they mostly impose it.

Original Print: http://isnblog.ethz.ch/government/indecision-and-justice-in-kenya

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The summit of summits on the international criminal justice circuit is set to kick off in Uganda next Monday with debate over the crime of aggression commanding center stage, Claudio Guler writes for ISN Security Watch.

By Claudio Guler for ISN Security Watch, 27 May 2010

From 31 May to 11 June, 1,500 to 2,000 delegates from 110 states parties, observer states, other states invited by the UN General Assembly, and members of civil society, academia and practitioners of international criminal justice will descend on Kampala, Uganda to participate in the first and only statutorily mandated review conference of the Rome Statute of the International Criminal Court (ICC).

The conference will feature numerous events and debates, including an exhibition football match promising to showcase the dribbling skills of UN Secretary General Ban Ki-moon and Ugandan President Yoweri Museveni. None, however, is garnering more comment and attention than efforts to define and operationalize the crime of aggression.

Judging performance

The conference agenda includes a series of stocktaking exercises that will appraise the first and soon-to-be eight years of the Court’s work. The stocktaking will look at four areas: the impact of the Rome Statute system on victims and affected communities – discussions will certainly address ongoing witness protection concerns in Kenya; complementarity, the legal principle that calls for the primacy of national judicial efforts ; cooperation with the Court; and peace and justice, striking the proper balance between the demands of making peace and guaranteeing accountability.

The Assembly of States Parties (ASP), the intergovernmental body that oversees and funds the Court, has further approved for debate two amendments to the Statute other than the crime of aggression.

Delegates must decide whether or not to remove a temporary and transitional war crimes amnesty provision. Set out in Article 124, the provision gives states parties the choice to exempt their nationals from war crimes prosecutions for seven years following ratification of the Statute. To date, only France and Colombia have made use of the provision.

The second amendment is a Belgian proposal to criminalize ‘the use of poison, poisoned weapons, asphyxiating, poisonous or other gases and all analogous liquids, materials or devices as well as the use of bullets that expand or flatten in the body to armed conflicts not of an international character.’ The provision already exists for conflicts of an inter-state nature.

Thou shall not aggress

The debate on the aggression amendment has in the main two parts: definitional issues and jurisdictional issues.

The ASP established a Special Working Group on the Crime of Aggression in 2002. Since then, the group has convened periodically to come up with a definition and has tabled a draft version for the conference.

The draft version defines the crime of aggression as: “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations”; and an act of aggression – favoring a specific, list-based interpretation based on UN General Assembly Resolution 3314 (XXIX) of 14 December 1974 rather than a generic one – as: seven different acts of hostility that amount to an act of aggression.

Discussing the US position with ISN Security Watch that Washington is widely seen as the most significant holdout from the Rome Statute system given its frequent rhetorical appeals to human rights and the rule of law, Matthew Heaphy, deputy convenor of the American NGO Coalition for the International Criminal Court (AMICC) explained, “The US was absent from the aggression negotiations for eight years and thus did not participate in the informal discussions that led to a draft proposal to be considered at the Review Conference. The American delegation will be under pressure from various actors at Kampala to accept the already agreed definition of the crime of aggression and to negotiate actively on the other elements of an amendment, including how the ICC gets jurisdiction over an aggression situation.

“The Review Conference, given its importance to the ICC community, will arouse close attention to US actions and positions. If the US seeks to reopen issues that have already been settled or takes positions different from its allies who are ICC States Parties, the resulting reactions could make a closer US relationship with the Court difficult.”

Jurisdictional issues also feature prominently. Should the crime of aggression require acceptance by both the aggressor and the victim state, or only the victim state, for the ICC to proceed? Should any effort to try the crime of aggression first pass muster by way of a filter, either the UN Security Council, the UN General Assembly, the International Court of Justice, a Pre-Trial Chamber of the ICC or other body?

Two thirds of the members of the ASP must ratify the amendment to make it enter into force. Seven-eighths must ratify it for it to become binding on all states parties.

The voices weigh in

With apprehension characterizing much of the pre-conference debate, a number of scholars and practitioners have expressed their viewpoints. Stephan G Rademaker, a former Bush administration official, and a recent Council on Foreign Relations report authored by Vijay Padmanabhan have argued against adoption. Both primarily cite sovereignty concerns and misgivings about the potential politicization of Court prosecutions.

Other notable voices such as Anton du Plessis, Richard Goldstone, Harold Koh, David Kaye and civil society groups under the Open Society Justice Initiative umbrella fret adoption could overwhelm the Court at an early stage, blight its credibility and hamper cooperation with the Court by non-states parties, in particular powerful states. They urge putting off the matter to a later date. Others yet, such as professors Michael Glennon and Anthony Clark Arend, have primarily taken issue with the definition produce by the Special Working Group.

Notwithstanding, there is significant momentum in favor of realizing the crime of aggression; especially among states parties that rank low in the international power hierarchy and would on balance benefit from the added legal protections. Many of the critical observers mentioned above, moreover, are notably calling for the delay and not the dismissal of the amendment. And the original framers of the Statute included the offense – Article 5 (2) – but left the paragraph undefined.

Noah Weisbord, a visiting assistant professor at Duke Law School and an expert on the working group defining the crime, advocates a compromise approach, which he popularized in a recent International Herald Tribune op-ed. If a definition can be agreed and the amendment adopted, Article 121 (5) of the Statute provides for an ‘opt-in’ mechanism whereby states parties that ratify the amendment accept jurisdiction while those that do not ratify remain immune, unless and until they sign on.

Regarding jurisdiction, Weisbord explained to ISN Security Watch, “Judging from the meeting of the Assembly of States Parties in March, the two most likely, and competing, scenarios are: 1) acceptance by aggressor State not required plus non-SC or no filter and; 2) acceptance by aggressor State required plus non-SC or no filter. The SC filter, which was on everyone’s mind until recently, is not very popular, though a number of influential states, including the United States, are advocating for it. But things can change quickly at the review conference, especially if a creative diplomat or legal scholar invents a new idea that appeals to a wide range of interests.”

Weisbord prefers the latter, primarily because, although he reckons option 1 is the most fair, it could lead to a scenario in which the ICC prosecutor is unable or unwilling to prosecute a powerful and victorious aggressor, thereby undermining the credibility of the Court. “A reasonable compromise – one that tempers justice with prudence – is to require that both the aggressor and the victim state have signed onto the provision before the court can proceed. The drawback is that not all states will be bound by the new law. The hope is that states will gradually sign on, as they have with unexpected speed with the ICC Statute, and that, over time the prohibition on aggression will become the norm.”

Original Print: http://www.isn.ethz.ch/isn/Current-Affairs/Security-Watch/Detail/?lng=en&id=116618

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by Claudio Guler, 18 March 2010, ISN Blog

Back in November 2008, I wrote a commentary piece on the Darfur conflict for ISN Security Watch (Sudan: China is Key) with the phrase, “the incoming Obama administration can show its resolve to combat genocide.” I can no longer say with conviction that this loaded term is an appropriate description of what transpired in the region.

I have eschewed the label in my analytical reports ever since. All the same, the debate is an important one and warrants further scrutiny. It also highlights the intersection of politics and law in international criminal justice.

What transpired in Darfur, for the most part between 2003-2006, was certainly a grave humanitarian tragedy and an abhorrent counter-insurgency campaign, but did it amount to genocide?

Former US Secretary of State Colin Powell first described the conflict in Darfur as genocide back in September 2004, sparking a flurry of activism and prompting calls for military intervention. Since then, an inadequate but better-than-nothing AU/UN peacekeeping operation has been deployed, and the International Criminal Court (ICC) referred by the UN Security Council has opened a formal investigation, indicting among others, Sudanese President Omar al-Bashir for war crimes and crimes against humanity. The prosecutor of the ICC, Louis Moreno Ocampo, has continued to vigorously push for charges of genocide against Bashir for targeting the Fur, Massalit and Zaghawa tribes. This has invited accusations of politicization, as critics charge that the evidence is circumstantial.

Article 6 of the Rome Statute of the ICC defines genocide as:

[A]ny of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such:

1. Killing members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
4. Imposing measures intended to prevent births within the group;
5. Forcibly transferring children of the group to another group.

A seminal 2005 UN Commission of Inquiry Report on the Darfur conflict found that the various tribes of Darfur, although far from constituting homogeneous religious and ethnic entities, could be viewed as ‘subjective protected groups.’

The hitch with Mr Ocampo’s efforts is that he appears bereft of evidence to demonstrate genocidal intent on the part of the central government in Khartoum.

Indeed the Commission concluded in its findings that Khartoum was guilty of war crimes and crimes against humanity, but not genocide. As proof, it pointed to instances of select killings of would-be insurgents rather than entire populations, as well as the aggregation of conflict refugees in government-run camps not intended for extermination following hostilities.

Alex de Waal, a prominent Sudan expert, has denounced the prosecutor’s behavior.

Conversely, John Prendergast of the Enough Project and the Save Darfur Coalition in Washington DC continue to argue, as many others do, that the evidence for genocidal intent is conspicuous.

The Darfur conflict also has a regional dimension, suggesting a more archetypal proxy-war situation, but not excluding the possibility of genocidal behavior in individual cases, which is rarely broached in the mainstream press. Although the two have ostensibly reconciled in the past months, Khartoum was claiming not so long ago that Chadian President Idris Derby in N’Djamena – himself on French life support – funds the Darfur rebel groups. N’Djamena has accused Khartoum of similar behavior. The conflict also spills over into the northeastern Central African Republic (CAR). (Read The Tormented Triangle, a Crisis States Research Centre report on the regional aspect of the crisis.)

It is a debate. And the question of whether or not specific individuals in Darfur acted with genocidal intent is now for the judges in The Hague to ascertain. In the meantime, it is probably best for us to stick to the measured findings of the Commission report:

“The conclusion that no genocidal policy has been pursued and implemented in Darfur by the Government authorities, directly or through the militias under their control, should not be taken in any way as detracting from the gravity of the crimes perpetrated in that region. International offences such as the crimes against humanity and war crimes that have been committed in Darfur may be no less serious and heinous than genocide.”

Original Print: http://isnblog.ethz.ch/security/darfur-the-genocide-question-2

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A spate of recent international judicial actions is nipping at heels of the some of the world’s most powerful states and suggesting that although a culture of impunity persists, getting off scot-free is little by little on the wane, Claudio Guler writes for ISN Security Watch.

By Claudio Guler for ISN Security Watch, 14 December 2009

Involvement by the International Criminal Court (ICC) in Afghanistan, Israel-Palestine and potentially the UK and Canada is showing itself an emerging challenge to the disparity between strong and weak states in international criminal justice. For the strong and high-minded, it is an inconvenient lot.

In many ways, including in particular implementation mechanisms for judicial decisions, a comprehensive framework for international criminal justice lags. The ICC, launched in 2002, institutionalized the international community’s resolve to hold to account individuals implicated in the violation of jus cogens or peremptory norms of international law, violations so grave as to make their perpetrators hostis humani generis or enemies of all mankind.

The Rome Statute of the ICC gives the Office of the Prosecutor (OTP) jurisdiction over war crimes, crimes against humanity and genocide, committed on the territories or by nationals of “States Parties.”

A principal impediment to the development of a comprehensive framework is the non-participation of strong states, hindered by their concerns over sovereignty and the potential for politicization of international judicial actions. Chief among them is the US. This category also includes China, Russia, India, much of the Middle East and North Africa, and Southeast Asia.

The weak

For states toward the bottom of the international power hierarchy, acceding to the Rome Statute yields benefits. These include: projecting deference for the rule of law, gaining access to a forum to influence other states, and earning a modicum of protection against the use of force by other – usually more powerful – states on their territories.

But with several Congolese in the dock, a head of state under indictment and fat cat, rabble-rousing politicians in Kenya wondering who will be first to face the music, many in Africa perceive that the ICC is inordinately targeting the weak.

This perception, however, is misleading. The Democratic Republic of Congo, the Central African Republic, Uganda and Kenya are all ‘States Parties.’ Sudan is not; but was legally referred to the ICC by the UN Security Council. African countries, moreover, disproportionably suffer from dysfunctional judicial systems that often necessitate outside assistance.

In a broader sense, though, many observers of international affairs acknowledge the critique is legitimate. Strong states, particularly in the West, often preach justice, but seldom conform to their own standards internationally.

ICC involvement or the looming threat of ICC involvement in two ‘non-States Parties’ and two ‘States Parties,’ all regarded as strong or fairly strong actors in international affairs, suggests a correction may be in the works.

False alarm

Since September, conservative pundits in the US have fretted that ICC chief Prosecutor Louis Moreno-Ocampo’s decision to preliminarily look into allegations of Statute crimes by belligerents in Afghanistan could implicate US citizens. The development is precisely the scenario they warned of, they sigh; the Bush administration’s hostility toward the Court is vindicated. Afghanistan has been a States Party to the ICC since February 2003.

But, in speaking with ISN Security Watch, Ben Schiff, professor of politics at Oberlin College in Ohio and author of Building the International Criminal Court, points out that, “The prosecutor’s announcement that he’s looking into allegations against combatant forces in Afghanistan should cause little concern in the US if its military justice system and civilian controls are operating properly and with adequate transparency to assure the OTP that ICC involvement is unnecessary.”

Niamatullah Ibrahimi, co-founder of Afghanistan Watch, a human rights organization in Kabul, and the focal point of the Coalition for the International Criminal Court (CICC) in Afghanistan, explained to ISN Security Watch via e-mail that, “Although little is known about the prosecutor’s intentions in Afghanistan, two issues involving international forces remain the most controversial: detention and treatment of suspected insurgents and civilian casualties during their air bombardments. Many of their operations have apparently mistakenly hit civilian targets. An important question regarding these incidents is whether more careful planning and intelligence gathering could have avoided the damages caused to civilians.”

Schiff reckons, moreover, that the prosecutor’s preliminary investigation in Afghanistan may also yield information about the misdeeds of actors other than the US – including perhaps the Taliban. “This should be viewed as salutary by the US.”

Should Ocampo decide that US efforts are falling short, in theory, he could complicate travel for select US servicepersons or policymakers. Detention and transfer to The Hague, however, looks unlikely. Afghanistan’s 2002 ‘Article 98’ Bilateral Immunity Agreement (BIA) with the US precludes Kabul from surrendering US citizens to the ICC.

Upon entering office, the Obama administration rescinded the coercive sanctions that accompanied BIAs. All the same, the US-Afghan agreement remains on the books and it is unclear whether or not the Obama administration would move to enforce it.

Goldstone

The uncomfortable spotlight of international criminal justice has also fixed on Israel and its conduct during ‘Operation Cast Lead’ in December-January 2008-2009. Although Israel is not a States Party – necessitating a highly improbable UN Security Council referral for ICC intervention – international outrage at what was widely viewed as Tel Aviv’s disproportionate response to Hamas rocket fire produced the controversial Goldstone report.

The report urged both Hamas and Israel to conduct their own investigations into its findings. If they declined, it recommended the UN Security Council refer the situation to the OTP of the ICC.

Schiff argues, “Despite the invective to which it has been subjected, the Goldstone report did uphold a conventional interpretation of war crimes norms as established in the Geneva Conventions. The response to it has, predictably, been entirely political.

The report’s effect might have been greater if the UN Human Rights Council itself had greater international respectability, but the basic problem is that any attempt to deal judicially with this extremely politicized situation gets submerged by vituperation. If the alternative to the Goldstone report was no international investigation or response to the Gaza conflict at all, then the fact that the investigation was carried out, responsibly drafted and publicized is, on balance, a positive measure in upholding international standards,” he said.

Not I…

Elsewhere, two countries that are also influential actors in international affairs as well as States Parties to the ICC are equally set to test their commitment to justice.

Humble Canada could face criminal action. Whistle-blower and Canadian diplomat Richard Colvin last month charged that Canadian Forces failed to properly monitor detainee conditions in Afghanistan. He also claimed that Ottawa ignored repeated warnings about detainee transfers to Afghan units known to perform torture.

The government initially dismissed calls for a public inquiry. Canada is a States Party and the ICC could intervene if Ottawa fails to maintain complementarity standards.

Human rights watchdogs have been calling on the UK to conduct judicial inquiries into allegations of British complicity in torture in Pakistan and elsewhere overseas for close to a year now. The government has stonewalled.

New York-based Human Rights Watch published a report, Cruel Britannia, last month, which details the cases of five UK citizens of Pakistani origin who claim to have been tortured in Pakistan by Pakistani security agencies between 2004 and 2007. The report finds no direct evidence of UK participation, but argues that complicity is obvious.

Amnesty International said in a 10 August press statement: “Amnesty International urges the UK authorities not to pick and choose when they will observe their legal obligations: torture and complicity in torture are absolutely banned. It is high time for the British government to have its record assessed and for those who may be responsible for such serious abuses to be held accountable.”

According to a 26 November Daily Mail article (UK), if swept to power in upcoming elections, the opposition Tories claim they would support a wider inquiry. The UK is a States Party, and although the press has eschewed the point so far, ICC intervention is plausible.

As US President Barack Obama stated in reaction to Iran’s election turmoil in June, quoting Dr Martin Luther King, “The arc of the moral universe is long, but it bends towards justice.”

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With the rainy season fast approaching, Darfur’s next humanitarian crisis looms large and recently expelled aid agencies wonder who will fill the gaps as the peace process marks time, writes Claudio Guler for ISN Security Watch.

By Claudio Guler for ISN Security Watch, 5 Jun 2009

Khartoum’s 4 March expulsion of 13 private international aid agencies in retaliation for the International Criminal Court’s (ICC) arrest warrant for Sudanese President Omar Hassan Ahmad al-Bashir has left a significant aid gap in its wake. With the rainy season fast approaching, humanitarian circumstances in Darfur stand to deteriorate.

The expulsion likely secured diplomatic leverage for Bashir, mostly in delaying the peace process. But observers note that it also showcased callous disregard and did little to demonstrate willingness to pursue peace in Darfur. Speaking in Cairo on Thursday, US President Barack Obama described the Darfur conflict as “a stain on our collective conscience.”

In an attempt to put the peace process back on track, the US is pressing diplomacy. It has yielded limited results and holds out hope for more, but Darfuris are unlikely to emerge unscathed.

Ejected agencies expect the worst

The expulsion targeted aid agencies in Northern Sudan and Darfur only, sparing operations in Southern Sudan. Melissa Winkler, communications director for the International Rescue Committee (IRC), one of the expelled aid agencies, told ISN Security Watch, “The aid agencies expelled carried out an estimated 60 percent of aid operations in Darfur.” The UN reckons the sustenance of one million people or more is on the line. Filling the aid gap will not be easy.

Disease, more so than food and water, is now the chief humanitarian concern. The rainy season, which spans June to September, typically increases the incidence of water-borne diseases such as malaria, cholera and diarrhea. This year, with the aid agencies absent, tasks such as servicing latrines may go unattended, enabling the spread of disease.

The UN’s World Food Program (WFP) and World Vision – a Christian humanitarian charity organization – among others, have stepped up operations to get food and water to those affected by the NGO expulsion. On 15 March, WFP distributed two-month of food rations. These are now nearing depletion and any efforts to distribute supplies since have been ad-hoc. Khartoum insists that it alone will compensate for the aid gap.

Alun McDonald, regional media and communications officer for the Horn, East and Central Africa for Oxfam UK – also one of the expelled aid agencies – told ISN Security Watch in a recent telephone interview, “The longer it drags on, the worse it could potentially get. I don’t think there’ll be a sort of tipping point, unless the rainy season brings on an outbreak of disease. Over time it will gradually get worse.”

On 6 May, Khartoum announced itself willing to admit “new” aid agencies. However, no convincing word of such developments has been reported. Sudan, moreover, is a difficult country to work in; Khartoum confiscated all of the expelled aid agencies’ assets before showing their personnel the door.

McDonald elaborated: “Working in Darfur is extremely difficult, given the security situation. It’s even more difficult because it takes a lot of paperwork and negotiations with the government [to set up operations].” In 2004 and 2007, the Sudanese government signed agreements pledging to ease restrictions for aid agencies, but he claims that “not much of that was ever really implemented.”

In deciding which aid agencies to expel, Khartoum settled on high-profile, western organizations from the US, the UK and France, accusing them of colluding with the ICC. The reasoning fits well with Bashir’s repeated characterization of the ICC as an arm of western imperialism. An aid worker who spoke to ISN Security Watch on condition of anonymity adds, “There is a feeling that some of the expelled agencies are among the more outspoken ones, or ones that have been involved in sensitive work, around victims of sexual abuse and mental health.”

Pushing diplomacy

The US and Qatar have spearheaded diplomatic efforts to advance the enervated Darfur peace process. Qatar is providing the forum. The US, represented by Special Envoy Scott Gration, has spent the past two months urging stakeholders to the table.

Gration traveled to Sudan in April and May. He returned from his initial trip in April calling for closer US-Sudanese relations, reasoning this was the best way forward. His exertions, moreover, likely convinced Bashir to permit the remaining aid agencies to step up their activities and fill some of the aid gap.

The special envoy also visited China, Qatar, the UK and France in May and June. His trip to China – Khartoum’s most influential ally – produced some mildly auspicious results. Foreign Ministry spokesman Ma Zhaoxu announced to reporters on 26 May that China was ready to work with the US to “promote settlement” of the Darfur conflict. On 28 May, China’s envoy to Sudan, Ambassador Liu Guijin, met with members of the Darfur rebel group Justice and Equality Movement (JEM) for the first time in Qatar.

Just yesterday, the US announced it would host a peace conference on 23 June to assess implementation of the 2005 North-South Comprehensive Peace Agreement (CPA), hoping to use the occasion as a stepping stone to reinvigorate the Darfur peace process.

Following in the footsteps of US Senator John Kerry (D-MA), who visited Sudan back in April, Senators Johnny Isakson (R-GA) and Bob Corker (R-TN) traveled to Sudan from 25 to 27 May. They too returned expressing optimism. Yet on 26 May, the UK paper The Independent reported Bashir lashing out at the aid agencies once again, this time accusing them of fomenting regime change.

Khartoum resists engagement

In his inauguration speech in January, Obama offered some of the world’s more unsavory regimes a compromise: “Unclench your fist, and the US will extend you a hand.”

Sudan is testing the limits of this approach. The US has engaged, but Khartoum has been reluctant to reciprocate, particularly concerning the critical, humanitarian issue of the expelled aid agencies. Readmission would serve as an olive branch in Khartoum’s pursuit of warmer US-Sudanese relations and do much to help Darfuris.

On Friday in New York, chief prosecutor of the ICC, Louis Moreno-Ocampo, will address the UN Security Council in his biannual report. He has, as of late, argued that ICC judges would soon approve a genocide charge for Bashir.

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Khartoum’s aces of stonewalling may be at it again. Discrete diplomacy is an apt first step, but if it fails to yield results, Obama should speak up, Claudio Guler writes for ISN Security Watch.

By Claudio Guler for ISN Security Watch, 8 May 2009

Pre-Trial Chamber I of the International Criminal Court (ICC) issued an arrest warrant for Sudanese President Omar Hassan Ahmad al-Bashir on 4 March on seven counts of war crimes and crimes against humanity, and as anticipated, he retaliated. The US has stepped in, yet maybe not forcefully enough, and Washington risks getting hoodwinked.

Retaliation

The day after the issuance of the arrest warrant, Khartoum accused 13 private international humanitarian aid agencies of cooperating with the ICC, revoked their licenses and expelled them from its territory. Estimates given by the aid agencies to various media sources suggest international humanitarian organizations – including among others Oxfam, Médecins sans Frontières and the International Rescue Committee – provide anywhere from 40 to 70 percent of the aid internally displaced Darfuris need.

In addition to expelling the aid agencies, al-Bashir embarked on a regional grandstanding tour. He secured the support of the Arab League (AL) and the African Union (AU), and paid visits (in sequence) to Eritrea, Egypt, Libya, the Arab League Summit in Doha, Qatar, Saudi Arabia and Ethiopia.

South Africa is the first country to have told al-Bashir that it could not host him for newly elected President Jacob Zuma’s inauguration because of its legal obligations under the Rome Statute of the ICC. Botswana has dissented from the AU position as well.

Peace vs justice

The concern, particularly among humanitarians and peace negotiators, is that the pursuit of justice conflicts with the pursuit of peace.

In the Sudan, they fear, the ICC’s actions are disrupting peace negotiations and humanitarian aid to suffering Darfuris. The ICC, however, was established as an autonomous, apolitical, judicial institution. If the evidence against al-Bashir is convincing and meets the threshold for prosecution, the Prosecutor and Chambers should proceed, argues Ben Schiff, professor of politics at Oberlin College in Ohio and author of Building the International Criminal Court (Cambridge University Press, 2008). Under the Rome Statute, responsibility for the political judgment that suspension or delay would be appropriate lies not with the Court, but with the UN Security Council and the Permanent Five in particular.

Under US President Barack Obama, the Permanent Five’s most prominent member finally looks set to shake its disdain for the ICC.

Fence-mending

US support for the ICC would likely reinforce the case against al-Bashir. After eight years of subversion, Washington now signals cooperation.

In a recent telephone interview with ISN Security Watch, Professor Schiff argued that improved relations were likely to result in a policy of “benign engagement,” skirting ratification of the Rome Statute because of the domestic political costs associated with advancing this position.

Indicators support this assessment. The Fiscal Year 2009 omnibus appropriations bill no longer includes the Nethercutt amendment that limited US aid to states sympathetic to the ICC. In written testimony to the US Senate Committee on Foreign Relations, Secretary of State Hillary Clinton said, “We will end hostility towards the ICC, and look for opportunities to encourage effective ICC action in ways that promote US interests by bringing war criminals to justice.”

The controversial nomination of Harold Koh, former dean of Yale Law School, to the US State Department’s senior legal advisory post also appears auspicious. Referring to the situation in Sudan on 28 April, Koh stated prudently before the US Senate Committee on Foreign Relations: “It’s a complicated situation in which international justice, I believe, could play an important role in bringing a better outcome in Sudan than we have now. On the other hand, I don’t think that we should reengage [the ICC] without fully protecting American interests.”

Matthew Heaphy, deputy convenor of the American NGO Coalition for the International Criminal Court (AMICC) told ISN Security Watch: “Harold Koh is a leading and highly regarded international law expert who clearly appreciates and understands the work of the ICC. We expect that his role in creating the new US policy on the ICC will be positive and constructive.”

Professor Schiff highlighted viable areas for US-ICC cooperation once the relationship warms. He told ISN Security Watch: “My assumption is that the US has all kinds of information, in all the areas of the ICC’s operations being generated by intelligence and other sources [...] and as far as we know publicly that information has not been shared with the ICC.”

The professor noted satellite images and cell phone intercepts in particular, arguing that such information, if material, could strengthen the prosecutor’s case against al-Bashir.

Discrete diplomacy

The US administration has reacted to Khartoum’s retaliation with diplomatic engagement. Obama tapped retired Air Force General J Scott Gration as his special envoy to Sudan and dispatched him in early April. Gration held talks with Sudanese officials and returned promising “friendlier” US-Sudanese relations, reasoning that this is the best avenue to a political settlement. According to an 8 April news report, he also gave Khartoum 30 days to resolve the expulsion issue. Gration went back to Sudan on 6 May to assess Khartoum’s commitment.

US Senator John Kerry (MA-D) also traveled to Sudan in April. Upon returning to Washington, Senator Kerry gave an interview with National Public Radio (NPR) and said that a deal had been brokered with the Sudanese to readmit some of the aid agencies. He also published an editorial in the Boston Harold entitled “Diplomacy has chance in Sudan.”

On 6 May, Khartoum announced itself willing to admit “new” aid agencies (this may entail simply repainting the doors of agency vehicles), but concerns linger that all services may not be restored. UN humanitarian chief John Holmes welcomed the move.

Attempting a strategy of discreet diplomatic engagement first is shrewd – all parties save face and are therefore more likely to sign up to a deal. However, the present government in Khartoum is notorious for stonewalling and may renege on promises of action.

Action entails first and foremost securing the readmission of the expelled humanitarian aid agencies. It further calls for guaranteeing Khartoum’s adherence to the Comprehensive Peace Agreement (CPA) that ended the 20-year North-South civil war; advancing peace talks on Darfur, for example by way of the ongoing Qatari forum; and securing al-Bashir’s cooperation with the ICC arrest warrant.

A contingency plan

If Khartoum elects to stonewall, Obama should consider employing his normative leverage. It is Obama’s most valuable asset and it could make a difference.

The tide may even be turning in the Islamic world. In a recent televised Doha Debate, a Muslim audience voted 55 to 45 percent in favor of sending al-Bashir to The Hague.

Obama could stigmatize al-Bashir. He could convey the message that doing business with the present government in Khartoum is reprehensible. Obama could also pressure the AL and the AU to renounce their support for al-Bashir, and encourage them to follow the South African and Botswanan examples.

Normative politics may also be a sagacious way to encourage China – Khartoum’s protector-in-chief at the UN Security Council – to temper its defense. Beijing cares about image politics. Normative pressures likely convinced China to abstain on UN Security Council Resolution 1593, which referred the situation in Darfur to the Prosecutor of the ICC in the first place. Obama, however, should avoid targeting Beijing directly. Such an approach is fraught with pitfalls; indirect pressure is preferable.

Time is ticking. Rations and medical supplies are running low. If Khartoum stonewalls, Obama should consider speaking up.

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An ICC indictment against Sudanese President al-Bashir appears to be forthcoming, but arresting the terror of Darfur could prove complicated, Claudio Guler writes for ISN Security Watch.

By Claudio Guler for ISN Security Watch, 26 Jan 2009

An official indictment against Sudanese President Omar Hassan Ahmad al-Bashir is expected sooner rather than later, possibly before the end of February, which would make the embattled leader the first head of state indicted by the International Criminal Court (ICC).

ICC Chief Prosecutor Louis Moreno-Ocampo applied for an arrest warrant on 14 July 2008 for charges that include 10 counts of war crimes, crimes against humanity and genocide. The issuance of an arrest warrant will mark a milestone for the ICC, the people of Darfur and international criminal law in general.

The Darfur conflict started in February 2003. In an attempt to take advantage of the political opening generated by negotiations on the Comprehensive Peace Agreement (CPA) – which tenuously ended the 20-year North-South civil war in Sudan – the Justice and Equality Movement (JEM) and the Sudan Liberation Army/Movement (SLA/M) launched attacks on Sudanese government installations. Their grievances focused on Khartoum’s economic and political marginalization of Darfur; issues aggravated by encroaching desertification and increased resource competition.

Khartoum’s response was devastating. It funded the janjaweed militias to carry out, in collaboration with the armed forces of the government of Sudan, a heinous campaign of violence against the people of Darfur. The conflict probably remains – save for the Second Congo War – the international community’s most neglected of the past decade.

President al-Bashir came to power in 1989 when, as a colonel in the Sudanese army, he orchestrated a bloodless coup that ousted democratically elected prime minister Sadiq al-Mahdi. The Revolutionary Command Council for National Salvation was installed and al-Bashir was declared its chairman. In 1993, al-Bashir dissolved the council and appointed himself president.

On 31 March 2005, the UN Security Council adopted Resolution 1593 that referred the situation in Darfur to the ICC. Two of the UNSC’s permanent members, the US and China, abstained from voting. The US, actively opposed to the ICC under the Bush administration but committed to pursuing justice in Darfur, did not block the resolution’s passage. China, which maintains significant economic investments in Sudan’s petroleum sector, expressed its preference for a national prosecution, but normative pressures likely persuaded it to abstain as well. With Resolution 1593 adopted, Ocampo opened his investigation.

The prospects for an indictment appear to have unsettled al-Bashir. In October 2008, the GoS embraced a Qatari initiative sponsored by the Arab League and the African Union to negotiate a peace settlement. Shortly thereafter, on 12 November 2008, al-Bashir ordered an immediate ceasefire to the Darfur conflict. He has called for similar ceasefires before, and they all proved fleeting. These expediently timed examples, nevertheless, suggest some limited vulnerability to normative pressures.

Ocampo’s warrant request will likely be approved, but the charge of genocide may be dismissed. In his application, the chief prosecutor noted that al-Bashir “masterminded and implemented a plan to destroy in substantial part the Fur, Masalit and Zaghawa groups, on account of their ethnicity.” In the event Ocampo fails to meet the evidentiary threshold for genocide, he could still move forward with the war crimes and crimes against humanity charges. His reputation, however, would take a hit.

It would come in addition to his office’s mismanagement of potentially exculpatory evidence in the case against Thomas Lubanga Dyilo, former leader of the Union of Congolese Patriots (UPC). This misstep delayed Lubanga’s trail and raised suspicions concerning Ocampo’s prosecutorial integrity.

When an indictment is handed down, al-Bashir’s reaction will be closely watched. The possibility remains that he may retaliate by authorizing another campaign of violence.

The eventuality illustrates the peace versus justice debate, and raises the prospects for an Article 16 suspension. Article 16 of the Rome Statute permits, by vote of the UNSC, the suspension of an ICC investigation for one year and is renewable. Both France and the UK have hinted at supporting an Article 16 suspension, but their final intentions remain uncertain. China probably wishes it had vetoed Resolution 1593 when it had the chance. Now it finds itself lobbying UNSC members to support a suspension. A US veto could in any case block such an initiative. It remains to be seen how the Obama administration will act.

The janjaweed and the armed forces of the government of Sudan have ravaged Darfur. Of a population of 6-7 million, the UN claims that possibly 300,000 plus Darfurians have been killed, up to 2.6 million displaced, and 4.7 million affected by the conflict. Given al-Bashir’s ruthlessness and insincerity, as well as the broad measure of neglect the international community has already demonstrated on Darfur, delaying the pursuit of justice will only exacerbate the plight of Darfur, not improve it.

Once an arrest warrant is issued, one critical matter then remains outstanding: How to go about apprehending al-Bashir? As of yet, no plan exists.

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In the strategic hinterland of East Africa lays the world’s most neglected conflict, but the incoming Obama administration can show its resolve to combat genocide, Claudio Guler writes for ISN Security Watch.

By Claudio Guler for ISN Security Watch, 10 Nov 2008

It is near the bottom of the Obama to-do list: But with Darfur, the incoming US administration has the opportunity to do more than its predecessor. The solution is China, but the approach necessitates subtlety.

China and its national oil company, the China National Petroleum Corporation (CNPC), have been doing business in Sudan since the early 1990s. Since then, Beijing and the CNPC have bankrolled Khartoum, consciously ignored genocide and helped perpetuate conflict.

It would seem therefore that to change Khartoum’s behavior, scheduling a meeting with Beijing would be a good first step. Wrong. Today the US is more than ever in need of amicable relations with China. The evolving financial crisis demands fervent Sino-US cooperation. To avoid costly schisms that could imperil constructive collaboration, the US should for the time being shelve efforts to bilaterally pressure China on Darfur.

History moreover underscores this conclusion. Pressuring China on human rights directly has often failed to bear fruit. President Bill Clinton tried it in his first term, only to shift his focus to improving trade relations in his second term to encourage political liberalization and enhance Beijing’s respect for human rights.

Therefore, the way forward on Darfur entails indirect, not direct US coercion of Beijing. To accomplish this, the new White House should engage civil society, throw its weight behind the International Criminal Court’s (ICC) proceedings in Sudan early on, and call for the full deployment of the hybrid African Union-United Nations peacekeeping force.

Since 1993, China has been a net importer of oil. This has forced the Communist Party of China (CPC) to look beyond its own borders to find reliable suppliers to maintain its domestic pledge of economic growth – the CPC’s chief pillar of legitimacy. Africa has become a favorite destination. China’s inroads into Africa have included among others Angola, the Democratic Republic of Congo, Nigeria, Algeria, Chad, Equatorial Guinea and Sudan. China’s pursuits in Sudan represent its largest and most successful international oil expedition to date.

US-based Chevron Corporation first discovered oil in Southern Sudan in 1978. Its presence however was short lived. Upon the outbreak of war in Southern Sudan in the early 1980s, Chevron’s operations withered. The company never extracted any oil from Sudan and eventually sold its concessions.

During the 1990s, the Canadian firm Arakis Energy Corporation, later acquired by Talisman Energy Inc, operated in Sudan. But it also left before significantly developing its operations; however, not on account of security concerns but normative pressures from back home.

The CNPC has had a presence in Sudan since 1992. When Talisman Energy left in 2003, it became the largest proprietor of the Greater Nile Petroleum Operating Company (GNPOC), holding a 40 percent ownership stake. The GNPOC was incorporated in 1997 and is today a joint venture owned in collaboration with CNPC by India’s ONGC (25 percent), Malaysia’s Petronas (30 percent), and Sudan’s Sudapet (5 percent). It is principally responsible for oil exploration and production in Sudan.

China not only operates in Sudan, but also imports billions of dollars worth of oil from Sudan. In 1999, the CNPC extracted approximately 25,000 barrels per day (bpd). By 2002, this number reached 100,000 bpd. By 2006, CNPC was extracting 220,000 bpd and sending over 60 percent back home. In 2005, Sudan made up 5 percent of China’s oil imports. Over the past decade, depending on the price of oil, Sudan sold anywhere from US$3 to US$6 billion worth of oil to China per year.

Khartoum used this revenue to fund the Darfur conflict, which has generated an estimated 300,000 victims and displaced another 2 million. The UN claims 230,000 people fled the conflict in 2008 alone.

For both China and Sudan there are benefits and drawbacks to their relationship. Beijing provides Khartoum with foreign exchange, arms to conduct its internal wars and diplomatic cover at the UN. Conversely, Khartoum supplies Beijing with much needed oil and a public relations headache.

China’s pre-eminence and leverage in Sudan as well as its status as a permanent member of the UN Security Council renders it the most responsible international actor in the non-resolution of the Darfur conflict. All the same, due to current global economic conditions the US should not exert direct pressure on China to reform. The incoming US administration should instead make use of alternative avenues.

For the incoming Obama administration, engaging civil society is a good idea because China cares about image politics. Proof of this lies in the 2008 Beijing Summer Olympics. Civil society, particularly the media, has the platform and voice to stigmatize China on Darfur.

Supporting the ICC’s proceedings in Sudan is also sound policy for the new administration because the possibility of an indictment has markedly concerned Sudanese President Omar al-Bashir. China on the other hand can save face by arguing the ICC is an autonomous international institution over which it no longer has control since abstaining on UN Security Council Resolution 1593 referring the situation in Darfur to the prosecutor of the ICC.

Moreover, the US should publicly pledge to veto any resolutions seeking to invoke Article 16 of the Rome Statute, which suspends an investigation for 12 months and is renewable. This could additionally help China elude a snag with Khartoum.

Finally, because of the value China ascribes to image politics, it has supported the hybrid AU-UN peacekeeping force. Greater urgency on the part of an Obama administration to call for the full deployment of this force is unlikely to alienate China but help Darfuris.

Pressing economic concerns now regrettably overshadow and thwart US efforts to tackle Darfur by way of direct diplomacy or military action. But by engaging civil society, backing the ICC’s investigation in Sudan, and calling for the full deployment of the hybrid AU-UN peacekeeping force, the incoming US administration can begin to make progress on Darfur and elucidate a firm stance against genocide.

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