World court's big move on Darfur

After 20 months, more than 100 formal witness statements, and visits to 17 countries, the chief prosecutor of the International Criminal Court (ICC) Tuesday indicted a high-ranking Sudanese interior minister and a janjaweed militia leader on 51 counts of war crimes and crimes against humanity in the ongoing crisis in Sudan's troubled Darfur region.

The naming of Ahmed Haroun, a former deputy interior minister, and a janjaweed leader known as Ali Kushayb, is considered a bold move for the young ICC and its chief prosecutor Luis Moreno-Ocampo. Despite Sudan's rejection of the indictments, most experts hailed them as an international censure that could help end the four-year-old crisis that has killed more than 200,000 people, and displaced more than 2 million.

"The ICC did the right job at getting individuals who can be sacrificed by the Sudanese government, but who at the same time have a significant degree of culpability," says Alex de Waal, a Darfur expert and program director at the Social Science Research Council in New York.

Prosecutor Moreno-Ocampo intrinsically linked the Sudanese government and the feared janjaweed arguing that after Mr. Haroun took charge of the Darfur security desk in April 2003, he oversaw the "staffing, funding, and arming of the [janjaweed]," which grew by 10,000 soldiers and conducted atrocities in Darfur under Haroun's direct authority.

Darfur is widely regarded as the highest profile case in international justice circles, and a possible turning point in efforts to establish a global criminal tribunal – though ICC investigations into Darfur have proceeded during the conflict, and without cooperation by Sudan.

The "Sudanese Armed Forces" conducted a systematic campaign of "underlying operational" support for the janjaweed, the indictment argues, saying that Haroun and Mr. Kushayb met frequently. Janjaweed militiamen told villagers they had the backing of the state, including "the power to kill or forgive." Haroun visited Darfur towns so often he was "known as 'the official' from Khartoum," in west Darfur, Moreno-Campo charged, saying Haroun provided funds from "an unlimited budget...that was not audited."

Significantly for the war crimes and crimes against humanity charges, the janjaweed attackers "targeted no rebel peasants, but civilian residents, based on the idea that they supported the opposition rebels," Moreno-Campo said, and conducted "mass murder, summary executions, and rape."

The ICC has often been termed a "court of the future" for its prospective role as an arbiter of international justice. It was conceived in 1998 as a "court of last resort," and has built its legal approach and validity on the example of the UN Yugoslavia and Rwanda criminal tribunals also housed at The Hague. The ICC has not prosecuted anyone, though it is preparing a trial for Thomas Lubanga Dyilo for enlisting child soldiers in the Congo war of 2002-03.

Still, Tuesday's Darfur indictment is considered crucial in international legal circles since it is the first such case to be referred by the United Nations Security Council. Neither China, which has close ties to the Sudanese regime, Russia, or the US blocked the Darfur case.

Washington's tacit approval is significant, experts say, since the US has not participated in the ICC since it was established in 1998.

"The US position [to allow Darfur investigations to go forward] is a turning point institutionally," says Diane Orentlicher of American University's Washington College of Law, "since it reflects a willingness of the US to accept the jurisdiction of the court."

"All the NGO reports, the UN reports, the State Department, and the commissions, point to a pattern of crimes committed by the janjaweed as a proxy of the Sudanese government," says a source with close ties to the prosecutor. "The pattern is one of aerial attack by government planes and helicopters followed by janjaweed on the ground, sometimes supplemented by government troops."

Sudan says it will not extradite those indicted at The Hague. Still war crimes experts argue that international courts such as the Rwanda and Yugoslavia tribunals eventually proved to build moral and strategic arguments against those charged, which eventually limited their ill-doings and provided a basis for rebuilding the society.

International tribunals, which rarely have much clout, have faced a steady uphill climb over the years, with skepticism if not cynicism about their effectiveness a widely shared feeling among politicians and powerbrokers.

Yet they have continued to develop.

"Some people may never be brought to trial," says Anne Heindel, assistant director of war crimes research at American University in Washington. "But restricting their movements has an overall effect, making it harder [for them] to operate."

The inability of the court to travel in Darfur worries some international human rights legal scholars, who say the evidence should be gathered from the site of the war crimes themselves. Others have argued eloquently that charges of genocide should be brought in Darfur.

Yet most experts seem to agree that the ICC should simply proceed with as much professionalism and investigation as possible. "With this submission, the ICC Chief Prosecutor has stood up for the victims of the mass atrocities in Darfur and awakened the hope for justice in the region. He has also warned all parties to the conflict that they will pay a heavy price for any further attacks on civilians," said Maureen Byrnes, executive director of Human Rights First in New York, in a press release Tuesday.

"The first submission should not be the last," Byrnes adds. "The Chief Prosecutor should pursue evidence of criminal responsibility up the chain of command, no matter how high it takes him." The ICC prosecutor will submit his indictment to judges at The Hague court, after which the judges will decide how and whether to conduct a trial.