Letter to U.S. Department of Justice concerning ICC-Sudan OLC guidance
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Operation Broken Silence is joining 16 organizations in asking the U.S. Department of Justice to publicly release any unclassified written guidance that the Office of Legal Counsel has issued regarding the conditions under which the U.S. government can lawfully support the International Criminal Court (ICC) investigation of atrocities such as those recently committed in Sudan’s western Darfur region.
This request has been submitted under the Freedom of Information Act, 5 U.S.C. § 552.
What does this mean?
Since war consumed Sudan in April 2023, the armed actors in the conflict —specifically the army and Rapid Support Forces— have committed atrocities that the U.S. Secretary of State has determined meet the legal threshold of crimes against humanity, war crimes, and ethnic cleansing. Additionally, the prosecutor of the International Criminal Court (ICC) has confirmed his office is investigating ethnic massacres and other crimes being committed in Darfur.
The ICC is the only permanent global court with jurisdiction to prosecute individuals for the crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. It is the “court of last resort,” meaning it steps in when national courts fail to prosecute such crimes or need assistance in doing so.
American officials have reacted favorably to the ICC investigation in Darfur; however, the United States faces complex internal legal restrictions when it comes to assisting the court. This could hinder or prevent the U.S. government from handing over critical evidence the court may find useful for its investigation and any future prosecutions.
Wait, what’s happening in Sudan?
One of the worst armed conflicts and the largest humanitarian catastrophe in the world.
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A 2010 U.S. Department of Justice memorandum seems to suggest the U.S. government can support the Darfur investigation, provided that the support amounts to “assistance to international efforts to bring to justice…foreign nationals accused of genocide, war crimes, or crimes against humanity,” rather than “institutional support” to the ICC. Basically, the U.S. should approach the court on a case-by-case basis.
Analysis stemming from more recent U.S. legislation suggests that legal obstacles may stand in the way though. Former U.S. Ambassador for Global Criminal Justice Todd Buchwald has suggested that the U.S. government may not be able to assist the court “in the early stages of the [ICC] Prosecutor’s efforts in a country that would help identify which individuals should be ‘accused’.”
Why this matters
Early is the precise stage at which the court’s investigation of recent crimes in Darfur presumably stands. This is when assistance from the United States may be most helpful in speeding up and strengthening the ICC’s critical work. U.S. Secretary of State Antony Blinken’s atrocity determination suggests the U.S. government has evidence and information that could greatly assist the court.
It is essential that United States be able to share evidence and provide additional assistance to the ICC’s investigation in Darfur without waiting for formal accusations to emerge against specific individuals, and without then limiting its assistance to the cases against those accused. If legal barriers do exist, then the public should know what they are and be able to propose and pursue solutions to overcome them. Our joint Freedom of Information Act request seeks to make public any relevant guidance or memos to that end.
The clock is ticking. Sudan is now home to the world’s largest and worst humanitarian emergency, with millions of Sudanese under immediate threat of war crimes and famine. The complete impunity enjoyed by army and Rapid Support Forces generals is the primary driver of ghastly crimes and spiraling humanitarian conditions.
While we await a response from the Justice Department, we ask that you join us in taking direct action below.
We’re a nonprofit organization with over a decade of experience working alongside Sudanese heroes. Together we are making the story of Sudan known, empowering survivors, and working to build a renewed Sudan from the ground up. And we need your help.
Our Sudanese partners are overwhelmed with needs as the war spreads and hunger deepens. Your generosity will help them serve the most vulnerable in this time of tremendous need.
$2,200: Fund an entire classroom at Endure Primary School for one semester.
$1,000: Pays monthly salaries of 5 midwives.
$500 - Delivers food and clothing to Darfuri genocide survivors who have fled into South Sudan.
$250 - Supports a teacher and their classroom for one month.
$150 - Pays a nurse assistant’s salary for an entire month.
$100 - Give pencils, notebooks and other supplies to 16 students in Yida Refugee Camp.
$50 - Gives a day’s worth of medicine to three clinics.
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Operation Broken Silence is a registered 501(c)(3) organization. Your donations are tax-deductible within the guidelines of U.S. law.
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17 orgs ask the Justice Department to release any unclassified written guidance regarding the conditions under which the U.S. government can lawfully support the International Criminal Court investigation of atrocities in Sudan’s western Darfur region. https://operationbrokensilence.org/blog/letter-to-us-department-of-justice-concerning-icc-sudan-olc-guidance
American officials have reacted favorably to the ICC investigation in Darfur; however, the United States faces complex internal legal restrictions when it comes to assisting the court. https://operationbrokensilence.org/blog/letter-to-us-department-of-justice-concerning-icc-sudan-olc-guidance
It is essential that United States be able to share evidence and provide assistance to the ICC’s investigation in Darfur without waiting for formal accusations to emerge against specific individuals. https://operationbrokensilence.org/blog/letter-to-us-department-of-justice-concerning-icc-sudan-olc-guidance
