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U.S. Opposition to International Criminal Court in 2004-2005
Held Up Peacekeeping, Slowed Justice for Genocide Perpetrators

New Book Analyzes Disconnects Between Save Darfur Movement,
U.S. Policy, the United Nations, and Events on the Ground in Sudan

Rebecca Hamilton's Fighting For Darfur draws on 150 Interviews,
First-hand reporting, and dozens of Freedom of Information releases

Documents provide blistering assessments of policy failure, humanitarian disaster

National Security Archive Electronic Briefing Book No. 335

Posted - February 1, 2011

For more information contact:
Rebecca Hamilton - 202/994-7000
www.fightingfordarfur.com
hamilton@newamerica.net

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Washington, DC, February 1, 2011 - The U.S. government’s opposition to the International Criminal Court held up deployments of peacekeeping forces in Sudan and slowed the eventual indictment of Sudanese leaders who perpetrated genocide in Darfur, according to the new book, Fighting for Darfur, by Rebecca Hamilton, and documents she obtained through the Freedom of Information Act, posted today by the National Security Archive.

The U.S. ambassador to the United Nations predicted a “train wreck” on Darfur policy in January 2005 because the U.S. “has been adamant that it will not agree in any way to support or give legitimacy to the ICC,” and the European Union and other allies disagreed, thus “hamper[ing] efforts to advance US priorities in peacekeeping operations” and leading to “an awkward and ultimately political untenable position” for the U.S.

The documents include bleak assessments of the humanitarian tragedy in Darfur over years of policy failure, beginning with a 2004 cable reporting on Secretary of State Colin Powell’s trip to Sudan and meeting with the Sudanese head of state Omar al-Bashir, who would be indicted by the ICC in 2009 for crimes against humanity, and in 2010 for genocide.  Powell himself would publicly pronounce the Darfur tragedy a “genocide” in September 2004, but the lack of coordination and support for this position within the U.S. government meant little tangible followup occurred, according to the book.

By 2007, the documents show, the U.S. national envoy for Sudan would brief the Deputy Secretary of State that “the GOS [government of Sudan] is continuing large-scale population displacement, but apparently they are not killing people when they destroy villages.”

Published today by Palgrave Macmillan, Fighting for Darfur draws on 150 interviews to tell the story of the Save Darfur movement, and its intersection (and lack thereof) with changes in U.S. and international policies.  The author, a graduate of Harvard Law School, is currently special correspondent in the Sudan for the Washington Post and a grantee of the Pulitzer Center on Crisis Reporting.  While researching and writing the book, Ms. Hamilton won a fellowship from the Open Society Institute, carried out her Freedom of Information investigations as a fellow of the National Security Archive, and currently serves as Bernard L. Schwarz Fellow at the New America Foundation.

 


Read the Documents

Document 1: “Convey the USG’s grave concern over the atrocities being committed in Darfur”

“The Secretary’s Meeting with Sudanese Foreign Minister Osman Ismail (June 29, 2004),”
U.S. Department of State Brief, Secret/Noforn, partially excised. 
Source: FOIA Release

According to this briefing memo, Secretary of State Colin Powell intended to tell the Sudanese Foreign Minister that “We want the GOS to: (1)stop Jingaweit violence by employing military force if necessary; (ii) remove all obstacles to humanitarian access; (iii) cooperate fully with international monitoring, and; (iv) agree to engage in political talks with the Darfur armed opposition.”  The brief advises Powell to underscore “that the crisis in Darfur threatens the implementation of a north-south peace agreement.”

Document 2: “The situation in Darfur is not ‘contained’”

“Secretary Powell’s June 29, 2004, Meeting with Sudanese President Al-Bashir,” 30 June 2004,
 U.S. Department of State Cable, Confidential, excised.
Source: FOIA release

The minutes of Powell’s meeting with head of state Al-Bashir and other top Sudan government officials, cabled from the Secretary’s airplane afterwards, recount Powell’s statements that President Bush was pleased with prior progress in Sudan’s North-South peace process, but was “deeply troubled by the possibility of humanitarian catastrophe in Darfur.”  Powell told al-Bashir that President Bush was in “almost daily contact” with United Nations Secretary General Kofi Annan who was also “deeply concerned.”  Unfortunately, State Department reviewers censored most of the comments by the Sudanese side, even though the original classifier of the document tagged it for declassification in 2009; yet some of Sudan’s obfuscation may be seen in paragraph 12.

Document 3: “We anticipate that hundreds of thousands of people will die in Darfur”

“Sudan Demarche: Crisis in Darfur Requires EU Pressure and Resources,” 2 July 2004,
U.S. Department of State Cable, Confidential.
Source: FOIA release 

This cable summarizes Washington’s view of the Darfur crisis as of the time of Secretary Powell’s trip, and tasks U.S. embassies in the EU countries to press them for “energetic EU engagement in efforts to forestall an even greater humanitarian tragedy.”  The action message explains that Secretary Powell’s visit to Sudan offered “a window of opportunity to pressure the GOS into action” to improve the situation in Darfur, and points out that the government of Sudan was holding up customs clearances for humanitarian assistance, was insisting upon cumbersome tests on medicine needed by refugees, and had not taken “concrete steps” to stop the Jingawieit.  The message stresses the critical need for “immediate and generous donor contributions” before the onset of the rainy season further hampered efforts, and provides talking points for the embassies to use as well as an unclassified website featuring aerial imagery of Darfur. 

Document 4: “Train wreck coming in January 2005”

“Peace and Accountability: A Way Forward,” 7 January 2005,
U.S. Department of State Cable, Confidential.
Source: FOIA release.

This cable from U.S. Ambassador to the United Nations John Danforth provides a kind of swan song for Danforth’s official work on Sudan.  Previously President Bush’s special envoy for the Sudan from 2001 to 2004, Danforth would retire from government later in January.  Here, he reports that US-EU differences over  the International Criminal Court would likely create a “major confrontation” when the forthcoming 2005 UN Commission of Inquiry for Sudan would likely recommend referral of Sudanese human rights violators to the ICC.  Danforth predicts “an awkward and ultimately politically untenable position” for the U.S. on the ICC issue, given “our use of the term ‘genocide’ to describe what has occurred there.”  To work around this, the cable proposes five ways to work around the issue.  These include: assigning the African Union criminal jurisdiction over Darfur; expanding the jurisdiction of the International Criminal Tribunal for Rwanda to cover Darfur; creating a special Security Council backed tribunal for Darfur; have UN member states themselves hold perpetrators accountable; or acquiesce --while insisting on “safeguards”– to the referral of Sudan human rights violators to the ICC. 

Document 5: “We do not want to be confronted with a decision on whether to veto an ICC resolution in the Security Council.”

“Sudan: Accountability for War Crimes,” 28 January 2005,
U.S. Department of State Press Guidance, Unclassified.
Source: FOIA release.

This press guidance repeats the U.S. opposition to the ICC – “We believe there are better options for accountability and are examining them” – while noting consultations with African countries on alternatives.  If pressed, State Department officials were instructed to say, “We do not discuss the details of diplomatic discussions.”  The background section of the talking points reveals that the U.S. was working with African countries to create a “hybrid” African Union-UN court as an alternative to the ICC.  The background also notes, “We understand the [UN Darfur Commission of Inquiry] will recommend that the issue be referred to the ICC as the only workable solution for justice.”

Document 6: “Vocal African support for our UNSC action and draft resolutions would be extremely helpful.”

“Gaining African Support for Sudan Action in the UNSC,” 1 Feb 2005,
U.S.  Department of State Cable, Confidential.
Source: FOIA release.

This cable from Washington to U.S. embassies in key African countries seeks to mobilize those countries against the ICC option recommended by the 31 January report of the Commission of Inquiry, and instead gain their support for the “hybrid AU-UN Sudan Tribunal.”  The cable lays out the US strategy and key talking points for the upcoming UN resolution which would authorize a UN peacekeeping force in Darfur, in conjunction with the African Union, and impose targeted sanctions on the government of Sudan. 

Document 7: “How would this compare to the amount of time it would take for the ICC to begin work in Sudan?”

“Letter from Senator Patrick Leahy to Secretary of State Condoleezza Rice,” 4 February 2005, Unclassified.
Source: FOIA release. 

In a barbed letter to the Secretary of State, Senator Leahy of the Senate Appropriations Committee poses seven difficult questions for the Department of State position that a hybrid tribunal would be preferable to the International Criminal Court for trying accused Sudanese human rights violators.  Leahy questions the costs the United States would incur (an estimated $30-100 million over 3-5 years) for establishing a new court.  He also notes problems with the International Criminal Tribunal for Rwanda, the model for the proposed AU-UN hybrid court for Sudan.  Finally Leahy asks Rice, “Has the State Department undertaken any consultations with the victims of the atrocities in Sudan to determine the venue in which they would prefer these crimes be tried?”

Document 8: “We do not support an ICC referral for Sudan”

“Sudan Tribunal Demarche: Senegal,” 11 February 2005,
U.S. Department of State Cable, Confidential.
Source: FOIA release. 

This cable instructs the U.S. ambassador in Senegal to lobby the President of Senegal, Abdoulaye Wade, “as soon as possible” for his support of the US-proposed “African Union-United Nations hybrid court” as an alternative to the International Criminal Court.  The proposed court initially “could share the existing physical infrastructure of the International Criminal Tribunal for Rwanda,” although the court’s location would “be for the AU to decide.”  According to the cable, the AU-UN hybrid court would help “relieve overburdened national judicial systems;” give African prosecutors, judges, and other personnel “increased human capacity;” and ensure “African ownership in securing justice and accountability on the continent.”  The cable urges the ambassador to ask Wade to call other African presidents and encourage them to support the AU-UN court.  Interestingly, in other declassified versions of this cable, State Department censors removed the sentence in paragraph 4 saying “the AU will have to express an opinion,” and most of the talking points about U.S. conversations with Nigerian President Obasanjo. 

Document 9: “Ensure GNU does not delay or derail”

“Your Meeting with EU Special Representative for Sudan Pekka Haavisto,” 5 April 2006,
U.S. Department of State Briefing Memorandum, Confidential, Excised.
Source: FOIA release. 

Three years into the Darfur crisis, the U.S. is still working on getting “an eventual UN” peacekeeping force on the ground, replacing the ineffective African Union effort.  This April 2006 briefing memo for a meeting between the EU’s special representative on Sudan and a U.S. alternate representative at the UN explains that “a quick and effective UN re-hat of AMIS [African Union Mission in Sudan] and a full deployment of an eventual UN mission to Darfur remains our first priority.”  The goal is to work with the EU to ensure that the newly formed government of Southern Sudan did not “delay or derail efforts to improve and expand Darfur peacekeeping.”

Document 10: “Pit the US government against itself”
 
Excerpts, Ron Capps Memorandum to U.S. Department of State, 28 April 2006.
Source:  Personal notes donated by author.

This blistering assessment of the Darfur crisis as of 2006 comes from retired lieutenant colonel Ron Capps, then serving his second tour in Sudan for the State Department.  Originally drafted as a “dissent channel” message, the text actually reached the State Department as a front channel cable with an introduction by the U.S. charge in Khartoum, Cameron Hume – in order to maximize its distribution.  Here, Capps writes, “The Sudanese government, so adept at pitting tribe against tribe, has managed to pit the US government against itself.” He explains: “USAID officials, many of whom began their careers moving food and support into Southern Sudan during the long civil war, lobby for regime change by any means necessary.  Defense Department officials, their forces overextended in two wars already, plausibly query whether it is wise to militarily engage a third Muslim nation.  CIA operators laud Sudanese cooperation on counter-terrorism while their analysts detail arson, rape and murder committed by the government-supported Janjaweit.  At Foggy Bottom it seems the strategy is to continue to substitute other nations’ peacekeepers for sound US policy.”  Capps argues for direct U.S. military or NATO engagement, but President Bush’s own off-the-cuff remarks on 17 February 2006 about the need for “NATO stewardship” had already drawn zero NATO interest.  Capps closes his message by comparing the failure of the United States in Rwanda to the failure of the United States in Darfur, imploring, “Yes, it will be hard.  But being hard should not deter us from doing what is right.  This is genocide.  If we are serious about stopping it, this is what it will take.  Otherwise, which American President will be the one to apologize to the dead of Darfur?”

Document 11: “The GOS is continuing large scale population displacement, but apparently they are not killing people when they destroy villages”

“Re: Sudan Trip,” 5 April 2007
Personal Memo from Andrew Natsios to John Negroponte.
Source: Donation from the author. 

This bleak view of the Darfur crisis four years on comes from the former administrator of the Agency for International Development, Andrew Natsios – then serving as President Bush’s special envoy for Sudan – in a personal memo to the Deputy Secretary of State, John Negroponte, just before the latter’s upcoming trip to Sudan.  Speaking for himself and not through official channels, Natsios cites U.S. domestic pressures –often driven by advocacy groups– as a hindrance to US goals in Darfur, since “everything associated with Sudan operates in slow motion, when the demand in the media, beltway, advocacy groups, and congress wants an immediate solution.  Nothing is going to be resolved quickly, yet policymakers expect immediate results.”  Natsios advises Negroponte that “every word you say will be watched by the advocacy groups and instantly disseminated through the internet.  This politics is constraining what we may be able to do to resolve the crisis.”  Natsios also cites uncooperative regional powers, looting of humanitarian convoys by Southern Sudan rebels, Congressional pressure to enact “regime change” in Sudan, and an inability by the U.S. to fulfill promises made to the Government of Sudan as impediments to U.S. goals in Darfur.

U.S. Satellite Reconnaissance Imagery of Sudan, 2004-2005
Source: National Geospatial Intelligence Agency: Freedom of Information Act request
 
 
 
 
 
 

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