PARIS AND JOHANNESBURG
Thrust this week into its highest-profile case to date, the fledgling International Criminal Court (ICC) faces both enormous opportunities and risks as Prosecutor Luis Moreno-Ocampo launches an investigation into possible war crimes in the Sudanese region of Darfur.
At stake is not only the provision of justice to the victims of violence there, which has left at least 180,000 dead and nearly two million homeless, but the very future of international justice. The case, analysts say, crosses a new threshold, since for the first time investigators will be working uninvited by the local government and against its will.
"It is going to be very difficult," says Princeton Lyman, a former US ambassador to Nigeria and South Africa who now works at the Council on Foreign Relations in New York. "The Sudanese government will not cooperate."
That resistance is putting into sharp relief the sometimes competing interests of international justice and state sovereignty.
"This is a crucial test" for the ICC, says Richard Goldstone, the first man to prosecute such crimes from the Balkan wars.
Supporters of the court, which was founded three years ago as the world's first permanent, independent judicial body to try war crimes and crimes against humanity, welcome its role in one of the world's most troubling crises.
"It shows that the court is ... firmly part of the international scene," says Christopher Hall, a legal analyst with Amnesty International, the London-based human rights organization.
Human rights groups blame most of the atrocities over the past two years in Darfur on Janjaweed militiamen supported by Sudanese government troops, though antigovernment rebel forces have also been accused of war crimes.
Darfur is the third case that investigators with the ICC prosecutor's office have taken on. In Uganda and Congo, however, they are acting at the request of those countries' governments, which have accused rebel groups of atrocities. In Darfur, they will be working at the request of the United Nations Security Council.
"This is a historic development" for international justice, says Yves Sorokobi, spokesman for Mr. Moreno-Ocampo.
Announcing the launch of the investigation Monday, Moreno-Ocampo called for "sustained cooperation from national and international authorities."
That is unlikely to be forthcoming from Sudan, whose government has said it will not hand over any of its citizens for trial in the ICC. Sudan has signed, but not ratified, the ICC treaty. Thus it is not party to the court, but is subject to its jurisdiction because the UN Security Council referred the situation in Darfur to the court.
Some top Sudanese government officials, along with rebel and militia leaders, are believed to be on the secret list of 51 people suspected of "grave international crimes" by a UN commission of inquiry that reported last October.
That will pose a challenge to the ICC investigators gathering evidence in Sudan to support any indictments, since most suspects and victims are under the Khartoum government's control.
And the regime has ways of making things difficult. After UN Secretary-General Kofi Annan's recent visit to Darfur, the government harassed his interpreter, who had helped him speak to rape victims.
Investigators will also face a very dangerous security situation in Darfur, where aid convoys are regularly attacked. Unlikely to want to rely for protection on the very Sudanese forces they are investigating, they will not be able to turn either to the African Union (AU) troops in Darfur, because their mission is to monitor a cease-fire, not to protect foreign nationals.
The Sudanese government says its own courts are capable of trying war crimes, and has recently begun to overhaul its justice system.
A recent Amnesty International report, however, found "no evidence that Sudanese courts are able to investigate and try these crimes by both sides independently and fairly," says Mr. Hall.
Going after the top dogs - the small number who bear the greatest responsibility for atrocities - offers the ICC "a great opportunity ... to play a part in trying to bring an end to the violence in Darfur and promote justice," Sorokobi says.
Though Sorkobi says the Darfur investigation will be "quick and judicious," court observers do not expect any indictments for at least a year. The ICC has not yet issued any indictments in either Uganda or Congo, after more than 18 months of investigation.
"The problem will be to get the defendants in the dock," warns Judge Goldstone, who began prosecuting Balkan war criminals at the International Tribunal on Crimes in the Former Yugoslavia in 1993. It was only after the Dayton peace agreement, and the arrival of NATO-led troops, however, that Goldstone had the means to actually arrest anyone.
The AU is the only international body with troops on the ground in Darfur, but they are there under a very weak mandate allowing them only to "monitor" the situation, and to protect only the civilians in their immediate vicinity. The idea that they might arrest Janjaweed members in the foreseeable future "is a nonstarter," says Richard Cornwell of the Institute for Security Studies in Pretoria.
Nor does the UN Security Council, where two members, Russia and China, have close economic relations with Sudan, seem willing to send any other international forces to Darfur to halt the violence, let alone to support court investigators.
The Security Council "has set a legal procedure in process, but it has not yet given it any teeth," worries Adam Roberts, an expert on international law at Oxford University in England. "We cannot be very optimistic at this stage about the chances of gathering the kind of evidence to persuade a court of law."
Other observers foresee a greater impact for the ICC in Sudan. "Regime officials are very worried about the long-term ramifications of the ICC investigation," says John Prendergast, an analyst with the Crisis Group, a conflict prevention non-profit, via e-mail from Washington.
Those "indicted by the ICC will become international pariahs," he points out. And since there is no statute of limitations on war crimes, nor do ICC arrest warrants expire, "eventually the likelihood is that they will be picked up and tried," Mr. Prendergast adds. "Justice will not come quickly in Sudan. But it will come."
The violence in Darfur, which President Bush has said amounts to "genocide," appears to be changing some minds in Washington - at least a little - about the value of the ICC. The US administration has long been a fierce opponent of the court, fearing it could launch politically motivated prosecutions of American citizens abroad, and has tried strenuously to undermine the court's legitimacy.
At the end of March, US policymakers faced a dilemma when the UN Security Council debated referring the situation in Darfur to the ICC prosecutor. To have voted in favor would have shown support for the court, but voting against, and blocking the move, would have left Washington vulnerable to criticism that it was abetting genocide. The US abstained, allowing the resolution to pass.
Two weeks ago, US Deputy Secretary of State Robert Zoellick told reporters that the ICC proceedings are "a useful deterrence against others" and allow the US to emphasize the need to stop the violence."
That attitude, says Princeton Lyman, a former US ambassador to Nigeria and South Africa, suggests that "this case has opened the door to American acceptance of the ICC as having a legitimate international role."
- Peter Ford
• Purpose: To prosecute war crimes, genocide, crimes of aggression, and crimes against humanity. The ICC is distinct from the World Court, a civil tribunal that arbitrates disputes between nations; they are both UN bodies.
• Date established: Formally came into effect July 1, 2002.
• Location: The Hague, Netherlands.
• Chief Prosecutor: Luis Moreno-Ocampo.
• Who belongs? 130 countries have signed the ICC treaty; 99 have ratified it. The US, China, and Sudan have not.