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Last Updated: Tuesday, 1 February, 2005, 13:20 GMT
Sudan atrocities strain US relations
By Paul Reynolds
BBC World Affairs correspondent, BBC News website

A recommendation that mass killings in the Darfur region of Sudan be referred to the International Criminal Court is threatening to become a new source of tension between the United States and some of its allies.

Darfur refugees line up for food in January 2005
Refugees line up for food in southern Darfur

A five-person panel appointed by the UN decided there was enough evidence of atrocities to justify taking suspects to the court, which was set up in The Hague in 2002 as a permanent body to try war crimes.

However, it ruled that the actions of the Sudanese government did not amount to genocide.

The tension has arisen because the United States opposes the court in principle and in practice.

Ironically, the US government itself has said that what happened in Darfur amounted to genocide. So as a way of following that up without getting entangled with the ICC, the US has proposed instead that a special war crimes tribunal for Darfur be set up.

This would sit in Tanzania and would be run by the UN and the African Union.

Clash of views

US allies and others see Darfur as a clear case for the ICC. These allies include Britain, though for the moment the British government is treading carefully.

"We have said that we must ensure that those responsible are brought to justice," said a Foreign Office spokesman, "We support the ICC, but whether this is taken to the ICC is for the Security Council."

The issue encapsulates the clash between the Bush administration's view of the world - as one in which the US has to retain a free hand, lest hostile forces act unfairly against US personnel - and the efforts of the European Union and other countries to coalesce international action around the UN.

The ICC lacks necessary safeguards to ensure against politically motivated investigations and prosecutions
US State Department

Discussions in the Council about the report of the Darfur panel, chaired by Judge Antonio Cassese of Italy, first president of the International Criminal Tribunal for the former Yugoslavia, are due to take place soon.

Opposition to the ICC by the Bush administration has been strong and remains so.

Not only does it not co-operate with the court itself, it has negotiated agreements with dozens of countries that they will not surrender US citizens to the court.

These are called Article 98 agreements, from the clause in the ICC treaty which denies the court the right to seek someone if this would conflict with a state's obligations under an international agreement.

US objections

The state department argues that the US has been vigorous in pursuing war criminals and suspects, from the Nuremberg trials of leading Nazis to former Yugoslav President Slobodan Milosevic.

But it fears politically motivated actions against its soldiers and citizens in the ICC.

It says, in part: "The US does not seek to put its people 'above the law', rather we want to ensure that our nationals are dealt with by our system of laws and due process.

"We object, however, to the investigation or prosecution of our citizens by the ICC, whose jurisdiction we have not consented to and which lacks necessary safeguards to ensure against politically motivated investigations and prosecutions. "

In addition, the US Congress has passed the American Servicemembers' Protection Act. This prevents US co-operation with the court and its participation in peacekeeping operations without immunity.

It even contains what human rights groups call the "invasion of The Hague" clause - authorising the president to use all means to free US personnel detained by or for the court. The president, however, is able to ignore this Act "in the national interest".

Critics of the US position, like Human Rights Watch, say that Washington has effectively withdrawn the signature to the treaty placed there by President Clinton.

"The renunciation of the treaty has paved the way for a comprehensive US campaign to undermine the ICC, " HRW says.

Dealing with Darfur

The problem is also another reflection of the difficulties the international community has had in dealing with Darfur. The Security Council has threatened sanctions, but has not imposed them.

For one thing, China, with a veto on the Council, is against them and China is now heavily involved in the rapidly growing oil industry in Sudan.

China's National Petroleum Corporation has major interests in Sudan's oil fields and Sudanese oil is now exported to China. Sudan was exporting 345,000 barrels of oil per day last year and this figure is expected to rise to 500,000 this year.

Oil is transforming Sudan's economy and this prospect is making investors other than China wary of imposing sanctions on the oil industry, which would be the only one worth restricting.

Details of the UN's report

FROM OTHER NEWS SITES: U.N. Envoy Says Horrified by Fresh Darfur Attacks - 1 hr ago
San Francisco Chronicle Envoy denies genocide in Darfur - 2 hrs ago
Chicago TribuneBoth sides criticize UN's Darfur report - 4 hrs ago
The Scotsman UN brands Sudan killings 'war crimes' - 5 hrs ago
Peoples Daily Online Sudan calls UN report on Darfur unfair - 7 hrs ago
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