ANALYSIS: Darfur and the ICC

UN Security Council Referral

For nearly three and a half years, a campaign of ethnic cleansing in Sudan’s western region of Darfur has killed nearly 400,000 civilians. As many as 500 people continue to die each day. Because Sudan is not a member of the International Criminal Court (ICC), only the Security Council of the United Nations (UN) had the power to refer the atrocities in Sudan to the ICC.

On March 31, 2005, the Security Council voted to refer the situation in Darfur to the ICC. This marked an historic day because it is the first time the Security Council has referred a situation to the ICC. Resolution 1593 passed 11-0 with four members abstaining: the United States, Algeria, Brazil and China.

Investigations into the atrocities are scheduled to begin immediately. The ICC Prosecutor has already indicated that he will be contacting "the relevant national and international authorities, including the United Nations and the African Union" to begin his work.

Specific Crimes under the Rome Statute

The Rome Statute of the ICC provides clear and precise definitions of what constitutes both genocide and crimes against humanity. Genocide, for the purpose of the Statute, means any acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, including killing members of the group, causing serious bodily or mental harm, or deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.

The systematic and large-scale violence in Darfur meets these high standards. In addition to the mass killings, examples of these crimes in Darfur include systematic, almost daily, attacks by the Sudanese government involving bombing of both civilians and the social infrastructure that supports them (hospitals and schools, for example), which have had a devastating impact on the population. Further, the accounts of rape and other forms of sexual slavery, including enforced prostitution, forced pregnancy, and any other form of sexual violence, constitute crimes against humanity and would also be punishable under the Statute.

Who Could be Indicted

Under the statute’s mandate, the ICC only prosecutes individuals who bear the greatest responsibility. Government and civilian leaders on both sides of the conflict – including the leaders of the Janjaweed – are among those the ICC could choose to indict. In addition, if leaders in the Sudanese armed forces knowingly let their subordinates commit atrocities without action to stop them, then they bear command responsibility for those actions and can be brought before the ICC.