Darfur is a region of the western Sudan; the population of Darfur is estimated at 7 million people. The armed conflict between the Sudan Liberation movement (SLM), the Justice and Equality Movement (JEM) rebel groups and the government of Sudan (military, police, militia) started in February 2003. The rebel groups accused the Sudanese government for oppressing Darfur’s non-Arab population, destroying their houses, murdering and raping. The Sudanese government responded to the attacks by carrying out a campaign of ethnic cleansing against Darfur’s non-Arabs. The killings in Darfur began in 2003 and one year later, September 9, 2004 it was declared as the genocide by United States Secretary of State Colin Powell. [1]
By the request of the United Nations Security Council (UNSC), the ICC initiated in 2005, an inquiry regarding the crimes committed in the Darfur region. The UNSC determined that “the situation in Sudan continues to constitute a threat to international peace and security”, and thus referred the case to the ICC [2]. The ICC has started investigations focusing on allegations of genocide, war crimes and crimes against humanity committed since July 2002 in Darfur, Sudan.
Although legally justified by Article 13 of the Rome Statute[3], the investigation was politically controversial, since it targeted nationals of a non-state party (Sudan). It sparked resistance from the Sudanese government, which refused to collaborate with the Office of the Prosecutor. The country argued that it had no obligation to cooperate with the ICC and refused to comply with the arrest warrants issued against its high-ranking officials – including then President Omar al-Bashir. President al-Bashir not only ignored ICC’s decisions but also acted to ban humanitarian organizations which operated in Darfur, claiming they were biased towards the ICC.
Furthermore, Sudan argued that the inquiry violated the principle of complementarity (established both in the Preamble and in Article 10 of the Rome Statute), since its own national courts were already addressing the issue. Additionally, considering the fact, that the case was referred by the UNSC (in which no African countries are granted veto power), it also embroiled the ICC into power asymmetries discussions which were detrimental to its image as a neutral organization. Further on, the case sparked resistance from other African countries such as Uganda and Kenya, which accused the Court of disregarding the complexities of African politics and promoting a uniformization of human rights, thus missing the important aspects of the African political reality, dynamics.
Such situation poses a real challenge to the ICC, since the delivery of justice might be hindered if perceived by local actors as a “standardization of human rights”, reproducing Western values at the international level. The fact that, in the following years, other African countries voiced concerns about the ICC indicates that the problems faced in Darfur were not isolated but part of a bigger picture. It should be noted that the African continent approved its own charter of human rights (African Charter on Human and Peoples’ Rights). Given the importance of the Court’s role as a guarantor of human rights, the dispute had wide repercussions, especially in the regional level. As part of its learning curve, the Court must give due attention to the complexities of universalizing human rights, especially when dealing with post-colonial states. Such disagreements show the need for a discussion about multiculturalism in international criminal justice (and human rights in general), so that the ICC can properly deliver its mandate and serve the interests of justice. [4]
By Mahmoud Refaat: The European Institute for International Law and International Relations.
Contribution: Nino Zotikishvili, The European Institute for International Law and International Relations.
[1] https://tolerance.tavaana.org/en/content/darfur-genocide-0
[2] https://www.icc-cpi.int/darfur
[3] https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf
[4] Bielefeldt, H. (1995). Human Rights in a Multicultural World. Jahrbuch Für Recht Und Ethik / Annual Review of Law and Ethics, 3, 283-294. Retrieved May 25, 2021, from http://www.jstor.org/stable/43592943
