Ausgabe 34/2005

The World Court The Hague Takes On the Sudanese Blood Bath

The dream of using international law to impose world peace is not a new one. But the International Criminal Court is now trying to make it happen. With its eye firmly on Sudan -- and with Security Council backing -- the court is tackling a bloodbath of massive proportions. But with only a handful of investigators, can it really succeed?

By Thomas Darnstaedt and

The International Criminal Court in The Hague is set to challenge the world's worst.

The International Criminal Court in The Hague is set to challenge the world's worst.

The white monstrosity with its facade tilting forward looks a little like the superstructure of some fantasy ship on a pleasure cruise. But what's going on inside the building is being taken very seriously indeed.

One can already imagine the scenario: Armed guards in black uniforms are deployed to secure the side entrance to the white fortress on the outskirts of The Hague. A gate fortified with barbed wire is raised to allow passage through a steel-lined, electrified enclosure. Several vehicles carrying prisoners roll down the ramp into the basement.

The vehicles' occupants, top officials of the government of Sudan and leaders of their gangs of hired assassins are taken to room K 127, where they empty their pockets and pass their belongings through a scanner. The walls are painted blue and purple and the floor light green. Thick concrete separates the prisoners from the rest of the world. They sit down, these presumed criminal violators of human rights, on chairs bolted to the floors of their basement cells. There are eight cells here, just enough for a small selection of the very worst of the bunch.

Upstairs, on the second floor of the ICC, the spectators to the first regular international law case in world history sit in red Cassina chairs, waiting for the proceedings to begin. The rest of the world is waiting with them, waiting for the trial of those considered principally responsible for crimes against humanity in the Darfur region of Sudan. The proceedings will center on the deaths of at least 300,000 people, and on a barbaric civil war in Sudan that experts believe is the most gruesome ongoing war in the world. Five judges in dark blue robes will be called upon to issue a ruling on the slaughter in Darfur.

This vision though of using the courts to impose peace -- close as it may be to becoming reality -- is still a dream. But most of the details are already reality. The cells are ready, though still empty, the electrified wire has been charged, and the Cassina chairs are in place. Only one thing is missing: the miracle. "Have some patience," says the Canadian president of the ICC, Philippe Kirsch, "the court is prepared for everything."

The dream of a world court

Most of the roughly 300 men and women who work in this 15-story stronghold of international criminal law are no dreamers. In fact, most are lawyers. And the court where they work, which has been in existence for the past two years, bears the unadorned and direct name "International Criminal Court." Without much fanfare, Judge Rene Blattmann, a Bolivian with a thorough understanding of German legal history, a jovial man who likes to serve strong coffee to his guests in cups decorated with a floral motif, discusses his and his colleagues' views on their court. "This," he says, "is a step in the direction of realizing mankind's age-old dream of a world court."

The conflict in Darfur has left tens of thousands dead and has created hundreds of thousands of refugees.

The conflict in Darfur has left tens of thousands dead and has created hundreds of thousands of refugees.

This court could very well prove right a principle that has repeatedly been tested, with moderate success, ever since the Nuremberg trials of Nazi war criminals at the end of World War II: that justice can not only establish internal security, but can also create the framework for peace. And everyone at the world court knows that this principle -- with all its implications for global human rights law -- could be decided by this one case which has been sitting on the desk of Chief Prosecutor Luis Moreno Ocampo for all of two months: the Sudan case.

So far, the case includes a list of 51 possible defendants -- leading politicians and military officials charged with committing horrific crimes in the war-torn country of Sudan -- handed over to UN Secretary General Kofi Annan in January.

Antonio Cassese, a short, combative professor of international law from Florence, Italy compiled the list. The Italian, responsible for assembling the Yugoslavia tribunal -- likewise located in The Hague -- to try former Yugoslav President Slobodan Milosovic, is an important personality in the milieu of international criminal law. And given his experience, he was for the UN the obvious choice to dispatch to the Darfur region in western Sudan last autumn when the conflict there suddenly escalated.

It is a conflict that fits well into the International Criminal Court's vision of bringing war criminals and major human rights violators to justice. Raging since 2003, then US Secretary of State Colin Powell referred to the situation in Darfur as genocide, partly in response to the gruesome tactics the mounted Janjaweed militias and government troops had been using to fight rebel groups -- tactics that have been used with abhorrent results against civilians as well.

Routine massacres

Since then, massacres in Darfur have become routine. In a region the size of France, the Sudanese military and militias alike appear to be conducting a war of extermination. They have attacked and destroyed entire cities, like Khor Abeche in April where very few of the town's 20,000 inhabitants escaped with their lives. Women, men and children -- even helpless patients in the local hospital -- were massacred.

British experts estimate that the slaughter has claimed between 180,000 and 400,000 lives so far, and that about two million Sudanese in Darfur are now refugees -- and virtually unprotected. Although the African Union has sent about 2,200 soldiers and police officers to Darfur, they often arrive at the scenes of these crimes when it's already too late. Furthermore, they are met with distrust in the region because they are viewed as collaborators with the government.

Cassese headed for Darfur with a 30-member team, and returned to New York with nine crates packed with evidence: witness testimony about rapes, torture, looting and bloodbaths of unspeakable proportions. Cassese concludes that more than 2,000 villages and towns have already been burned to the ground -- and the slaughter continues. Officials at the UN are calling Darfur "currently the world's worst humanitarian catastrophe."

But the experienced international law expert Cassese didn't just hand over the evidence and leave it at that. He also had a proposal, which sounded harmless enough, but which quickly proved to be explosive. As he handed the list of possible defendants to Annan, Cassese suggested that the matter be referred to the International Criminal Court in The Hague.

The Hague versus Washington

Cassese's suggestion was about the last thing the Bush administration, which had actually triggered the case with its warnings of genocide, could have wanted. The USA has long been fighting against the creation of the ICC, and Washington has turned some of its most powerful diplomatic guns on the small court in faraway The Hague.

Why the worry? The US fears a scenario in which a GI fighting in a war or serving as part of a peacekeeping mission could be arrested and locked up in one of the court's basement cells in The Hague. US President George W. Bush even withdrew America's signature from the Rome Statute, the document that establishes the framework for the ICC under international law -- a pact which former President Bill Clinton had already given his John Hancock. It was a far-sighted move for Bush, as the Abu Ghraib prison abuse case soon demonstrated. If Iraq or the United States had ratified the statute, the American torturers in Iraq and their Washington bosses would certainly have qualified to be put on trial for war crimes in The Hague.

Genocide, crimes against humanity, war crimes: Because the Rome Statute stipulates that the ICC can also prosecute presumed criminals from non-signatory states if they have committed their crimes in the territory of a state that has ratified the statute, it is still possible that US citizens could be hauled before the court for participating in an ill-advised military campaign. To avert such an outcome, the United States has enacted a law that prohibits any cooperation with the court, and even authorizes the president to use military force to free any US citizens imprisoned in The Hague.

Jurists in The Hague derisively refer to the law as the "Hague Invasion Act," and say they are waiting -- half-amused, half-irritated -- for the day when US Marines land on the beaches of the Dutch seaside resort of Scheveningen.

But the superpower lacks a sense of humor when it comes to these matters. The White House has promised to put up "active resistance" against anything coming out The Hague. In the Sudan case, this means: "We will not support efforts by the international community to use the Security Council as a way of legitimizing the ICC" -- said Pierre Prosper, US Ambassador at Large for War Crimes, in January. But the Security Council was precisely the target of Cassese's proposal. Because Sudan has signed but not ratified the Rome court statute, the ICC can only act if the case is referred to it by the UN Security Council.

But then came the miracle. The United States decided not to veto the resolution. In return, the Security Council assured that if any US soldier were truly challenged during a peacekeeping mission in Sudan, he could not be summoned before the ICC in The Hague.

The United States is opposed to the International Criminal Court. The torture scandal of Abu Ghraib would almost certainly have been a case for the court.

The United States is opposed to the International Criminal Court. The torture scandal of Abu Ghraib would almost certainly have been a case for the court.

In this manner, UN Security Council resolution 1593, dated March 31, 2005, became a sort of birth certificate for the world court. Claus Kress, a professor of international criminal law in Cologne, optimistically sees the incident as "proof" that even superpower America "cannot survive a confrontation with the ICC -- the moral convictions of most Americans would make that impossible." Kress represented the German government when the Rome Statute was being fleshed out, and today he is a key advisor to the court.

Time for miracles

Following the Council resolution, UN envoy Cassese and ICC Chief Prosecutor Moreno Ocampo met in Ocampo's office on an afternoon in April. In the presence of his two deputies, the prosecutor opened Cassese's sealed brown envelope and the three prosecutors carefully read through the document. No copies were made, no notes were taken and the list was promptly locked up again in Ocampo's safe. The prosecutor's conclusion? It is now the court's turn to work a few miracles.

But then, Moreno Ocampo is the right man for miracles. In truth, the world ought to be shaking in its books -- at least that part of it with something to hide -- when it encounters this man, this grand inquisitor for global justice. And it's not as if Sudan were his only concern. Since last year, Ocampo has been investigating the civil wars in Uganda and the Democratic Republic of Congo. Indeed, the governments of both countries even approached Moreno Ocampo in the hopes that his justice could end up being their peace. "Such enormous trust," he says, appearing completely exhausted.

It's not easy to set up an appointment with Ocampo, busy as he is with an almost uninterrupted schedule of conferences, and interviews with the press mean skipping out on one of these important meetings. He is tired, but talkative. The sleeves of his striped red shirt are rolled up, his glasses dangle from a chain, and his small-patterned tie hangs loosely around his neck. First he tries to conceal a yawn, then gives up and yawns heartily. "What can I do for you?" he says.

Question number one: How exactly is it possible to achieve peace through justice?


© DER SPIEGEL 34/2005
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