Bush’s Darfur Dilemma

A.H. Jaffor Ullah

   It took a long time for the Bush Administration to realize that a full-scale genocide was going on in the western part of Sudan, which is known as Darfur region.  It is better to be late than never.  The Secretary of State, Gen. Colin Powell, visited the troubled part of Sudan in June 2004 to see the refugees in the camp run by international NGOs after the news of plights of indigenous African people making headlines in late May 2004.  Mr. Powell has described the government-backed campaign by Arab Janjaweed (man with gun on a horse) militia in Sudan’s Darfur region as genocide.

   I first became aware of trouble in Darfur in May 2004 after I listened to a National Public Radio (NPR)’s news story in which a reporter vividly narrated the wanton killing of the native African Sudanese by Arab militia backed by the Khartoum Administration.  After an initial research, I wrote an article on the plights of native Darfur people, which was published in quite a few newspapers and e-forums in the Internet.  It took about a year before the plights of Darfur region was revealed in the western media.  In March 2003, fighting broke out in the western region of Sudan known as Darfur between the government forces and rebels from the Sudan Liberation Army (SLA) and the Justice and Equality Movement (JEM).  Nine months later, Arab Janjaweed militia came to Darfur region and drove nearly 100,000 refugees into neighboring Chad after they set fire to homes of indigenous people, killing thousands on top of raping women.  To make matters worse, Sudanese government restricted relief organizations’ access to Darfur.  Only when the refugees moved to Chad did the world know about the plights of black people from Darfur region. 

   By February-March 2004 over a million refugees moved to Chad, the U.N. described Darfur as the world’s worst humanitarian crisis.  A top U.N. official declared that a large-scale ethnic cleansing was in progress in Darfur against black Africans.  It should be emphasized that Arabic speaking Sudanese are in control of the government in Khartoum while the affected people in Darfur belong to an indigenous race speaking an African language.  The oppressed folks of Darfur and South are ethnically different from the Northerners who consider themselves of Arab descent. 

   Once the world knew about the Darfur crisis through media, the Sudanese government pledged in June 2004 that they would disarm Janjaweed militias, allow humanitarian aid to reach western Sudan, and work for a political solution.  Two months later, the African Union sends in thousands of troops and police in an effort to end the violence in Darfur region.  In September 2004, a U.N. official tells the Security Council that the Khartoum Administration is yet to disarm the Janjaweed militias or end their attacks.  In October 2004, the U.N. Secretary General Kofi Annan appointed a commission to investigate the allegations of genocide in Darfur.  Buckled under pressure, the Sudanese government signed a peace agreement with the rebels in Sudan’s southern region earlier this month (January 2005).  The accord however does not end the unrelated conflict in Darfur, which is located in the western most part of the country.

   I read an interesting report on Darfur genocide in the Wall Street Journal, which was published on January 18, 2005.  The article focused on the Bush Administration’s ambivalence about the way the perpetrators of the crime will be tried in a court.  To stop further killing in Darfur region of Sudan, the Bush Administration may soon be forced to choose between prosecuting the planners of Darfur genocide and continuing the International Criminal Court (ICC) located in The Hague, Netherlands or by a tribunal.

   After months of deliberation, in September 2004, the Secretary of State, Mr. Colin Powel, labeled the massacre in Darfur “genocide.”  That triggered legal obligations to address the crime and plight of Darfur people under the “Genocide Convention.”  To reinforce its findings, the Bush Administration supported wholeheartedly establishing a U.N. Commission to further investigate the Darfur situation, decide whether the killing amounted to genocide and advise the Security Council on how to punish those perpetrators and the planners of this genocide.

   The U.N. commission’s report will be coming out by the end of January 2005 and in all likelihood it will report that the crime of genocide was perpetrated by the agents of Khartoum government in Darfur region; the commission will also recommend that the Security Council refer the case to The Hague’s International Crime Court or ICC—a tribunal the Bush Administration considers a risk to American interests.  American legislators in Washington have so much contempt for ICC that they approved a legislation to cut off aid to nation that do not sign pledges not to coöperate with the court in The Hague should it investigate an American.

   For whatever reasons the U.S. Administration is hostile to ICC; the international community knows this, but has never challenged America to accept the verdict of the court.  The U.S. has veto power to block any move to send a case to ICC; however, the Bush Administration won’t do such a thing lest it would worsen the strained relationship America has with some major EU nations.  I learned from the WSJ reporting that Congressman Frank Wolf, who is also a co-chairman of the Congressional Human Rights caucus, has said that ICC may present the best way to seek justice for Darfur genocide.  He opined that if the U.N. commission recommends sanctions, weapon embargo, and travel restrictions on suspected perpetrators and with it a referral to the ICC, he would take the deal and go.  He thinks it is better than doing nothing. 

   The Bush Administration, however, dreads this idea not because ICC could bring Americans to justice but the referral could give the fledgling court the much-needed legitimacy.  Washington views the ICC as a threat because its independent prosecutor and judges will have the power, in theory at least, to prosecute U.S. agents, employees, military personnel for carrying out orders from the government in ICC member countries.  Mr. Bush knows that ICC has strong supporters amongst U.S. allies.  For example, both Britain and Australia think that enough safeguards were built into the 1998 treaty that would prevent the court to try any cases that are simply politically motivated. 

   ICC has many supporters round the world.  Many human rights activists think that ICC is the last resort for addressing crime against humanity, war crimes, and genocide in countries where judicial systems have all but collapsed.  As per the WSJ article, Mr. Richard Dicker, director of the international justice program at Human Rights Watch in New York, has said, “To put it bluntly, the International Criminal Court was created precisely for situations like Darfur.” 

   All told, about 1.85 million African villagers were uprooted from their homes in Darfur region.  The human casualty was high too.  The marauding Janjaweed butchered about 70,000 African people according to a conservative estimate.  However, experts vary in their estimate.  Sudan analyst Eric Reeves of Smith College has attempted a serious analysis of mortality in Darfur.  He calculated that approximately 370,000 people have died since the rebels of the Sudan Liberation Army came to international attention back in February 2003.  They are fighting for an independent Darfur, and the Sudanese government, in retaliation sought the help of local militias.  Amidst the chaos, the poor and innocent continue to pay the price with their lives.

   The outlook for a peaceful settlement in Darfur is grim.  Peace talks were suspended in December 2004 and the British branch of the charity Save the Children said it was withdrawing its 350-member staff after four of its workers were killed.  

   The ICC is a legitimate court in 97 nations where the member nations have ratified the treaty.  However, the court cannot act without a U.N. Security Council referral in cases against nonmember nations, such as Sudan and the U.S.  Some academicians in the U.S. think that if the Bush Administration blocks the Darfur referral, it would do incredible damage to the images of U.S. to the outside world.  Prof. Michael Scharaf, a law professor at Case Western reserve University in Cleveland, Ohio, said that it would “feed into the idea that the U.S. has become a law-breaking country instead of a law-supporting country.”

   The U.S. is not the only country opposed to the Darfur referral.  China and Russia also did not ratify the Rome Statute establishing the ICC.  These two nations also sit in the Security Council and will not act lest theirs relation with Sudan will be strained.  Both have oil interest in Sudan. 

   What would the Bush Administration do with the U.N. commission’s recommendation vis-à-vis Darfur?  There are several options for Bush but none are to his liking.  It could ignore the referral thus allowing the case to take its own course.  The U.S. could also push to expand the jurisdiction of the U.N. tribunal for Rwanda to include genocide in Darfur.  The third option would be an ad hoc tribunal for Sudan.  If the Bush Administration proposes the formation of this tribunal, then it would have to fund it because the European nations are already funding the ICC.  Let us wait and see what course of action the Bush Administration takes once the U.N. commission’s report and recommendations are published. 

   In summary, Bush’s Darfur dilemma is causing speculation in the world press.  As of this writing, the five-member U.N. commission examining the Darfur situation is in Geneva preparing its report.  The team has visited the troubled region in western Sudan.  Bush has three choices before him if the commission refers the case to ICC.  The Bush Administration is not totally against the ICC except that it fears the court could prosecute Americans.  Giving the approval for ICC to act on U.N. commission’s report would give legitimacy to the Hague court.  This poses a moral dilemma for the U.S. president because ICC may prosecute some violators of human rights who happen to be Americans.  The memory of torture done at Abu Ghraib jail is still fresh and there is no telling if it becomes a civil rights issue further down the road.

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Dr. A.H. Jaffor Ullah, a researcher and columnist, writes from New Orleans, USA