Given the violence in Darfur and the ensuing international reaction, the Fordham International Law Journal decided to publish a special issue on Darfur. It is timely in light of the continuing violence in the Darfur region. This article serves as the Introduction to the special issue

Goldstone, Justice Richard J.

English

Fordham University School of Law

Fordham International Law JournalVolume 31, Issue 4 2007 Article 1IntroductionJustice Richard J. Goldstone∗∗Copyright c©2007 by the authors. Fordham International Law Journal is produced by The Berke-ley Electronic Press (bepress). http://ir.lawnet.fordham.edu/iljIntroduction∗Justice Richard J. GoldstoneAbstractGiven the violence in Darfur and the ensuing international reaction, the Fordham InternationalLaw Journal decided to publish a special issue on Darfur. It is timely in light of the continuingviolence in the Darfur region. This article serves as the Introduction to the special issue.∗After graduating from the University of the Witwatersrand with a BA LLB cum laude in 1962,Justice Goldstone practised as an Advocate at the Johannesburg Bar. In 1976 he was appointedSenior Counsel and in 1980 was made Judge of the Transvaal Supreme Court. In 1989 he was ap-pointed Judge of the Appellate Division of the Supreme Court. From July 1994 to October 2003,he was a Justice of the Constitutional Court of South Africa. He is presently a Global VisitingProfessor at NYU Law School and from August 2003 will occupy the Mulligan Chair at FordhamLaw School in New York City . From 1991 to 1994, he served as Chairperson of the Commissionof Inquiry regarding Public Violence and Intimidation which came to be known as the GoldstoneCommission. He is also Chairperson of the Standing Advisory Committee of Company Law.From 15 August 1994 to September 1996 he served as the Chief Prosecutor of the United NationsInternational Criminal Tribunals for the former Yugoslavia and Rwanda . During 1998 he wasthe chairperson of a high level group of international experts which met in Valencia , Spain , anddrafted a Declaration of Human Duties and Responsibilities for the Director General of UNESCO(the Valencia Declaration). From August 1999 until December 2001he was the chairperson ofthe International Independent Inquiry on Kosovo. In December 2001 he was appointed as thechairperson of the International Task Force on Terrorism that was established by the InternationalBar Association. From 1985 to 2000, Justice Goldstone was National President of the NationalInstitute of Crime Prevention and the Rehabilitation of Offenders (NICRO). He is chairperson ofthe Bradlow Foundation, a charitable educational trust, and heads the board of the Human RightsInstitute of South Africa (HURISA). The many awards he has received locally and internationallyinclude the International Human Rights Award of the American Bar Association (1994) and Hon-orary Doctorates of Law from universities in Canada , the Netherlands , South Africa , the UnitedKingdom , and the United States . He is an Honorary Bencher of the Inner Temple , London , anHonorary Fellow of St Johns College, Cambridge , an Honorary Member of the Association ofthe Bar of New York, and a Fellow of the Weatherhead Centre for International Affairs of HarvardUniversity. He is a Foreign Member of the American Academy of Arts and Sciences. Since 1996,he has been a regular member of the faculty of the Salzburg Seminar.INTRODUCTIONJustice Richard J. Goldstone*The International Commission of Inquiry on Darfur (the"Commission") was established by United Nations ("U.N.") Sec-retary-General Kofi Annan in October 2004.' The Commissionreported to the U.N. in January 2005 that there was reason tobelieve that crimes against humanity and war crimes had beencommitted in Darfur and recommended that the situation bereferred to the International Criminal Court ("ICC").2 OnMarch 31, 2005, the Security Council referred the situation inDarfur to the International Criminal Court.3 The Prosecutor re-ceived the document archive of the International Commission ofInquiry on Darfur. Over the months that followed, the Prosecu-tor investigated the situation in Darfur and on June 6, 2005, heconcluded that the statutory requirements for initiating an inves-tigation were satisfied. On April 27, 2007, the ICC issued war-rants of arrest against Ahmad Muhammad Harun and AliMuhammad al Abd-Al-Rahman ("Ali Kushayb").4 Neither of thearrest warrants has been executed.Notwithstanding the referral of the situation by the SecurityCouncil, the government of Sudan has refused to recognize thejurisdiction of the ICC or cooperate with the investigation in anyway.5 Not only is the government of Sudan protecting the two* Richard J. Goldstone is a former Justice of the Constitutional Court of SouthAfrica and Chief Prosecutor of the International Criminal Tribunals for the FormerYugoslavia and Rwanda.1. See S.C. Res. 1564, U.N. Doc. S/RES/1564 (Sept: 18, 2004) (requesting Secre-tary-General to establish an international commission of inquiry into situation in Dar-fur); Press Release, Secretary-General, Secretary-General Establishes International Com-mission of Inquiry for Darfur, U.N. Doc. SG/A/890 (Oct. 7, 2004); Letter from Secre-tary-General to President of the Security Council, U.N. Doc. S/2004/812 (Oct. 11,2004) (setting out structure and purpose of international commission of inquiry).2. International Commission of Inquiry on Darfur, Report of the International Com-mission of Inquiry on Darfur to the United Nations Secretary-General, (Jan 25, 2005) (preparedby Antonio Cassese).3. See S.C. Res. 1593, U.N. Doc. S/RES/1593 (Mar. 31, 2005).4. Warrant of Arrest for Ali Muhammed Ali Abd-AI Rahman, ICC-02/05-01/07-3(Apr. 27, 2007); Warrant of Arrest for Ahmad Muhammad Harun, ICC-02/05-01/07-2(Apr. 27, 2002).5. See Editorial, Delay, Obstruction and Darfur, N.Y. TIMES, Dec. 10, 2007, at A22;Marlise Simons, 2 Face Trials at The Hague Over Atrocities in Darfur, N.Y. TIMES, Feb. 28,2007, at A3.812 FORDHAMINTERNATIONALLAWJOURNAL [Vol.31:811persons whose arrest is being sought, but Harun has been pro-moted to a more senior position in the Cabinet of PresidentOmar Hassan al-Bashir of Sudan.6 More recently, one of theleadingJanjaweed warlords, Musa Hilal, has been appointed as aleading officer in the Sudanese Security Services.7Politically, the government of Sudan is in a position tothwart the will of the Security Council for a number of reasons.The first is the support it receives from China. Sudan is an oilproducer and its most important customer is China.8 The Chi-nese have threatened to veto any serious Security Council actionagainst Sudan and have succeeded in watering down resolutionsproposed by the Western members of the Council.9The second reason is the ambivalence of the United States.In July 2004, both chambers of the U.S. Congress adopted con-current resolutions condemning the continuing atrocities in theDarfur region of western Sudan as "genocide" and asking theinternational community to join with the United States to helpbring an end to the humanitarian catastrophe that is under waythere.' 0 In September 2004, U.S. Secretary of State Colin Powellalso stated on behalf of the Administration that the killings inDarfur constituted genocide.11 The legal basis for the conclu-sion that genocide has indeed been committed in Sudan is pro-vided in a thorough and careful analysis by Jennifer Trahan, aleading New York civil liberties attorney, author and teacher.12On the other hand, the present U.S. Administration is not a6. See Delay, Obstruction and Darfur, supra note 5; Simons, supra note 5.7. See Sabrina Tavernise, Sudan Leader Rebuffs Critics Over Choice of Advisor, N.Y.TIMES, Jan 22, 2008, at A3.8. See F. William Engdahl, Darfur: Forget Genocide, There's Oil, AstA TIMES ONLINE,May 25, 2007, available at http://www.globalpolicy.org/security/issues/sudan/2007/0525forget.htm (describing scope of China's investment in Sudan's oil sector).9. See Patrick Goodenough, China Accused of Prolonging Sudan Bloodshed Because ofOil, CNSNEWS.coM, Apr. 11, 2006, http://www.cnsnews.com/ViewForeignBureaus.asp?Page=/ForeignBureaus/archive/200604/INT20060411c.html (taking note of criticismthat China's support for Sudanese government in Khartoum has prevented SecurityCouncil from taking measures that could bring end to violence in Sudan); KristinaNwazota, China-Sudan Trade Relations Complicate Darfur Crisis, ONLINE NEwsHOUR, Apr.25, 2006, http://www.pbs.org/newshour/updates/china-darfur 04-25-06.html.10. H.R. Con. Res. 467, 108th Cong. (2004); S. Con. Res. 133, 108th Cong. (2004).11. The Crisis in Darfur, Testimony Before the Senate Foreign Relations Commit-tee, Washington, D.C. (Sept. 9, 2004) (statement of Secretary Colin L. Powell), availableat http://www.state.gov/secretary/forrier/powell/remarks/36042.htm.12. Jennifer Trahan, Why the Killing in Darfur is Genocide, 31 FoRDHAm INT'L L.J. 990(2008).INTRODUCTIONsupporter of the ICC and is not prepared to give it any assis-tance." Of importance, it has been unprepared to place anypressure on Sudan to execute the arrest warrants for Harun andKushayb. The Court is entirely dependant on government sup-port for the implementation of its orders and requests, and theabsence of pressure from the United States is critical. In themeantime the killings and ethnic cleansing in Sudan continues.Against that background, the Fordham International Law Jour-nal decided to publish this special issue on Darfur. It is timely inlight of the continuing violence in the Darfur region.The question of state responsibility for genocide was re-cently the subject of a judgment of the International Court ofJustice in the case of Bosnia v. Serbia.14 The findings made by theCourt are relevant to the analysis of the crimes committed inDarfur and they are the subject of two thoughtful analyses byProfessor Ademola Abass15 and Senior Trial Attorney in the In-ternational Criminal Tribunal for the former Yugoslavia's Officeof the Prosecutor, Dermot Groome.' 6I have already referred to the role played by China. In thiscontext, the article by Mr. Chin-Hao Huang is of particular im-portance. Mr. Chin-Hao provides details of the Chinese eco-nomic interests in Sudan. He makes the point that Sudan's con-tribution to China's total energy needs "is important but notstrategic" and that "Sudan accounts for five to seven percent ofChina's total oil imports, and less than one percent of China'stotal energy consumption."17 I would suggest, however, that hav-ing regard to China's growing consumption of oil, it would notbe easy for it to find a substitute supplier. And, the projecteddecline of Sudan's oil production over the next decade does not13. See Nicholas D. Kristof, Op-Ed., Why Should We Shield the Killers?, N.Y. TIMES,Feb. 2, 2005, at A21.14. Application of the Convention on the Prevention and Punishment of theCrime of Genocide (Bosn. & Herz. v. Serb. & Mont.) (Judgment of Feb. 26, 2007),available at http://www.icj-cij.org/docket/files/91/13685.pdf (last visited Apr. 29,2008).15. Ademola Abbass, Proving State Responsibility for Genocide: The ICJ in Bosnia v.Herzegovina and the International Commission of Inquiry for Darfur, 31 FORDHAM INT'L L.J.871 (2008).16. Dermot Groome, Adjudicating Genocide: Is the International Court ofJustice Capa-ble of Judging State Criminal Responsibility?, 31 FoRDAM INTr'L L.J. 911 (2008).17. Chin-Hao Huang, U.S.-China Relations and Darfur, 31 FoRDHAM INT'L L.J. 829(2008).8132008]814 FORDHAMINTERNATIONALLAWJOURNAL [Vol. 31:811reduce the present usefulness of this present supplier of oil. Atthe same time, Mr. Chin-Hao draws attention to the fact thatChina is Sudan's largest export market and biggest source of for-eign investment. He states further that "[a]ggregate sunken in-vestestment as of late 2005 stood at an estimated US$15 billion,making China the largest foreign investor in Sudan.""8 He alsopoints out that it is estimated that 8100 Chinese are employed inSudan.19 It is clear that Sudan plays a central role in the cur-rently expanding Chinese Africa policy. The Chinese base theirpolicy with regard to Darfur on the "principle of non-interfer-ence." Mr. Chin-Hao's conclusion is that Chinese policy in thisregard is not inflexible and that Washington should be more un-derstanding of the "subtleties behind China's evolving perspec-tive.20The contribution by Mr. Chin-Hao sets the context for animpressive note by Russell P. McAleavey on an oil-for-food pro-gram for Sudan.2' His starting point is an Op-Ed I published inthe International Herald Tribune on June 13, 2007 calling for sucha program.22 The idea is that Sudan should be prevented bysuch a program from using any proceeds from its oil sales for thepurchase of military equipment. Mr. McAleavey's conclusion isthat notwithstanding the maladministration of the U.N.'s Oil-for-Food Program in Iraq, it "was successful in achieving two of itsmain aims: preventing Saddam Hussein from reviving Iraq's de-velopment of weapons of mass destruction and improving thestandard of living for the civilians of Iraq."23 The appeal of sucha program is that it would in no way impede oil sales to China orany other purchaser. Mr. McAleavey's conclusion is that "such aprogram could be the step that finally forces Khartoum to coop-erate with the international community. '24 I need hardly saythat I fully agree.Finally, there are two essays that highlight the importantcontributions that have been made by non-governmental organi-18. Id. at 830.19. Id.20. Id. at 842.21. Russell P. McAleavey, Note, Pressuring Sudan: The Prospects for an Oil-for-FoodProgram for Darfur, 31 FORDHAM INT'L LJ. 1058 (2008).22. Richard Goldstone, An "Oil-for-Food" Program for Darfur, INT'L HERALD TRIB.,June 13, 2007, at 4.23. McAleavey, supra note 21, at 1095.24. Id. at 1096.INTRODUCTIONzations. Genevieve Cox, a San Francisco litigator, and Jerome C.Roth describe the important perspective of Sudanese humanrights lawyers who participated in the Darfur Legal Training Pro-gram.25 A training session was held in London under the aus-pices of the American Bar Association's Litigation Section, withfunding from the MacArthur Foundation. 26 These Sudaneselawyers had never traveled outside of Africa and had little con-tact with international human rights law or training in trial advo-cacy skills. The Program allowed them to meet and interact notonly with American lawyers, but also a former InternationalCriminal Tribunal for Yugoslavia prosecutor, a federal judge,and representatives from the ICC.Colin Thomas-Jensen and Julia Spiegel describe the impres-sive movement that has arisen in the United: States and aroundthe world in response to the violence in the Darfur region ofSudan and the extent to which they have helped mould publicopinion and pressured some governments to take stronger ac-tion against Khartoum.27Finally, this issue contains a photo essay by Olivier Bercaultof Human Rights Watch. 2' This is yet another illustration of thepowerful message that photographs can portray.In the end, the response of the global community and espe-cially the powerful members of the U.N. has been a tremendousdisappointment. One would have hoped that the abject failureto protect the people of Rwanda would have driven the membersof the U.N. to adopt strong measures in the face of the dreadfulcrimes committed and being committed against innocent chil-dren, women and men in Darfur. If that still does not happen,more untold thousands of people will be slaughtered and manymore driven from their homes. The ball is very much in thecourt of the powerful global players. If the political will can bemustered the slaughter can be stopped.25. Genevieve Cox &Jerome C. Roth, SeekingJustice for Victims in Darfur: The DarfurLegal Training Program, 31 FORDHAM INT'L L.J. 816 (2008).26. See id.27. Colin Thomas-Jensen & Julia Spiegel, Activism and Darfur: Slowly Driving PolicyChange, 31 FoRDHAm INT'L L.J. 843 (2008).28. Olivier Bercault, Photo Essay, The Crisis in Darfur, 31 FoRDHAm INrr'L L.J. 859(2008).8152008]

Introduction

https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2100&amp;context=ilj

Introduction

Abstract

Similar works

Full text

Available Versions

Fordham University School of Law