‘The Fog that it has Drawn upon Itself’: Darfur and the future of the ICC

Abstract

This paper will explore widespread criticism of the International Criminal Court (ICC), through the lens of its long-running investigation in Darfur, Sudan. Analysis of the Prosecutor’s reports on the Darfur investigation since 2005 reveals that the Court has often avoided engaging directly with its critics, and remains particularly reluctant to address accusations of internal structural bias. The ICC, in tandem with global media outlets, often characterises the Darfur conflict in simplistic terms, many of which originate in part from divisions that were introduced and sustained by colonial administrations. Although the ICC faces practical difficulties in enforcing its jurisdiction in Darfur, this paper argues that its problems of perception stem largely from the fact that it is the product of an international legal system whose normative home is the Global North. It is this systemic weakness that damages the ICC’s global legitimacy and prevents the courts from functioning as an effective and progressive arbiter of international law. This paper seeks to suggest a way forwards for the ICC in the form of a reciprocal system of jurisdiction with an African International Criminal Court, such as the fledgling ACJHR. A partnership on equal footing, with a mutual basis for resource-sharing and legal expertise, may be the most promising avenue towards ending global impunity.