University of Arkansas, Fayetteville ScholarWorks@UARK Theses and Dissertations 12-2011 Evaluating the International Criminal Court: A Comparative Analysis of Darfur, Sudan, and the Democratic Republic of the Congo Mirisa Hasfaria University of Arkansas Follow this and additional works at: http://scholarworks.uark.edu/etd Part of the International Relations Commons Recommended Citation Hasfaria, Mirisa, "Evaluating the International Criminal Court: A Comparative Analysis of Darfur, Sudan, and the Democratic Republic of the Congo" (2011). Theses and Dissertations. 234. http://scholarworks.uark.edu/etd/234 This Thesis is brought to you for free and open access by ScholarWorks@UARK. It has been accepted for inclusion in Theses and Dissertations by an authorized administrator of ScholarWorks@UARK. For more information, please contact [email protected], [email protected]. EVALUATING THE INTERNATIONAL CRIMINAL COURT: A COMPARATIVE ANALYSIS OF DARFUR, SUDAN, AND THE DEMOCRATIC REPUBLIC OF THE CONGO EVALUATING THE INTERNATIONAL CRIMINAL COURT: A COMPARATIVE ANALYSIS OF DARFUR, SUDAN, AND THE DEMOCRATIC REPUBLIC OF THE CONGO A thesis submitted in partial fulfillment of the requirements for the degree of Master of Arts in Political Science By Mirisa Hasfaria Universitas Muhammadiyah Yogyakarta Sarjana Ilmu Politik, 2006 December 2011 University of Arkansas ABSTRACT This thesis examines the effectiveness of the International Criminal Court (ICC) in holding individuals accountable for grave breaches of crimes against peace, war crimes, crimes against humanity, and genocide. I argue that if we measure effectiveness in terms of the ability to set agenda and to publicize, the ICC accomplishes much. My thesis to shows that, as a key part of the international agenda on human rights compliance, the ICC derives its effectiveness from the various naming and shaming campaigns by national governments and non-governmental actors (NGOs). I draw on the cases of Darfur, Sudan and the Democratic Republic of the Congo to show that the ICC is effectively realizing its purpose: it gives voice to non-state actors like NGOs, regional actors, and international governmental organizations; it regularizes ways for international actors to be part of the process; it provides information to other stakeholders; and it names and shames the perpetrators of human rights violations. Hence, the ICC gives meaning to the cautious optimism that inspires liberal claims. This thesis is approved for recommendation to the Graduate Council. Thesis Director: ______________________________ Prof. Patrick J. Conge Thesis Committee: ______________________________ Prof. Margaret F. Reid ______________________________ Prof. Andrew J. Dowdle ______________________________ Prof. Ka Zeng THESIS DUPLICATION RELEASE I hereby authorize the University of Arkansas Libraries to duplicate this thesis when needed for research and/or scholarship. Agreed ___________________________ Mirisa Hasfaria Refused ___________________________ ACKNOWLEDGEMENTS My accomplishment would not have been possible had it not been for the individuals whom have supported, assisted, and inspired me. In so much as I am successful, these individuals are consequently bearing this same success, if not more. For it is they, whom have provided the tools that I might learn, and help others in the future learn: J. William Fulbright Foreign Scholarship Boar for a Fulbright award to the University of Arkansas, Prof. Patrick J. Conge, Prof. Margaret F. Reid, Prof. Andrew J. Dowdle, Prof. Todd G. Shields, Prof. Ka Zeng, Prof. Najib Ghadbian, Prof. David W. Stahle, Prof. Stephen M. Sheppard, Prof. Dustin N. Sharp, Prof. Seouk-Eun Kim, and Prof. Patrick Stewart. I would also like to thank Associate Dean of Graduate School and International Education Patricia R. Koski; Director of Student Ombuds Service, Susan L. Theiss; Graduate Assistant of University Ombuds Office, Jessica Pope; Director of Office of International Students and Scholars, Michael Freeman; my Foreign Student Advisor, Catherine L. Cunningham; Deputy Executive Director of AMINEF, Piet Hendrardjo; Cynthia J. Smith and all the wonderful members of International Culture Team; all my BFFs Aina Razlin binti Mohammad Roose, Ainul Fajri, Cut Dian Fitri, Cut Endah Setya Handayaningsih, Emile Phaneuf III, Fajar Radite, Laura Sassyfrass Mullins, Mirey Lesly Medina, Moloko Raxina Kgare, Petra K. Mulyani, Shankar Ravi, Thu Quynh Pham, and Wan Wizana Hashim. Lastly, I would like to thank Austin J. Adams for his love, morality, intelligence, and support, despite all and every opportunity to not hold these attributes to be true and good. DEDICATION I would like to dedicate this achievement to my family: Papa Amir Syarifuddin, Mama Sri Hastuti, siblings Mirza Fitra, Mirna Fitri, Miryanti Sari, Mirvan Syah Putra, and Mirfathul Authar. I would also like to dedicate this achievement to my CH-family: Papa Gian J. Baumann, Mami Regula Baumann, siblings Christin Eigenmann, Nick Baumann, Julie Baumann, Phil Baumann, and Noemi Baumann. TABLE OF CONTENTS I. Introduction 1 Realism and Liberalism 2 Background of the Problem 3 Legal Contours of the ICC 8 Purpose and Method 9 II. The Debate Over International Institutions and The Establishment of The ICC 11 Theoretical Debate over International Institutions: Realist And Liberal Perspectives 13 Relevance of Naming and Shaming 21 Establishment of the ICC 27 United States Opposition to the ICC 38 III. A Comparative Analysis of Darfur, Sudan and the Democratic Republic of the Congo 41 A. Darfur, Sudan 41 Sudan’s Political Instability 42 Sudan’s Socio-Economic Situation 51 Naming and Shaming on Darfur and the International Criminal Court’s Indictment 54 B. The Democratic Republic of the Congo 67 Congo’s Political Instability 68 Congo’s Socio-Economic Situation 75 Naming and Shaming on the Democratic Republic of The Congo and the International Criminal Court 83 IV. On The Effectiveness of Naming and Shaming To The Power of ICC and The Way Forward 90 V. Bibliography 96 VI. Appendices Appendix A – War Crimes Under The Rome Statute 107 Appendix B – Institutional Review Board Initial Protocol 111 Appendix C – Institutional Review Board Modifying Protocol 112 Appendix D – US Bilateral Immunity or “Article 98” Agreements 113 Appendix E – International Criminal Court and International Court of Justice Supranational Elements 117 Appendix F – Darfur’s Non-Signatory Movements 119 Appendix G – Major Humanitarian Agreements Binding on Sudanese Parties 121 Appendix H – List of Transnational Advocacy Networks Reports and United Nations Security Council Resolution on Darfur And the Democratic Republic of the Congo Issues 123 LIST OF TABLES Table 2.1: Summary of Human Rights Instruments and Treaties Sponsored by The United Nations 12 Table 2.2: Summary of Theoretical Debates on Culture of Compliance Toward Human Rights Treaties’ Ratification 20 Table 2.3: Summary of Investigations and Prosecutions by the International Criminal Court as of October 31, 2011 35 Table 3.4: Corruption Perceptions Index of The Republic of Sudan 54 Table 3.7: Corruption Perceptions Index of the Democratic Republic of The Congo 79 Table 4.1: Types of Prevention in the ICC and Security Council 94 LIST OF FIGURES Figure 2.1: Number of Countries Shamed Over Time 22 Figure 3.1: Darfur’s IDP Concentrations and Refugee Locations as of May 2004 48 Figure 3.2: The Republic of Sudan GDP Per Capita (in PPP US$) 1998 – 2010 53 Figure 3.3: The Republic of Sudan Human Development Index 1998 – 2010 53 Figure 3.5: The Democratic Republic of the Congo GDP Per Capita (in PPP US$) 1998 – 2010 77 Figure 3.6: The Democratic Republic of the Congo Human Development Index 1998 – 2010 78 1 PART I INTRODUCTION The international community increasingly seeks to hold individuals accountable for grave breaches of crimes against peace, war crimes, crimes against humanity and genocide. There are different solutions that range from the codification of international human rights and humanitarian law treaties to engagement in an internationally agreed mechanism to punish the perpetrators. Nevertheless, they share a common search for standards of compliance. Though national courts can be the most effective mechanisms for prosecuting such violations, international institutions also matter and are effective in their own right. I argue that, if we think of effectiveness as agenda setting and publicity, much is accomplished at the international level. This is especially so if we take a longer view. The international commitment to punish serious human rights violators has moved from ad hoc tribunals to more regularized forums. A recent example is the International Criminal Court (ICC). The establishment of the ICC is an important part of this growing commitment and in its short history its contribution is significant. My purpose in this thesis is to show that, as a key part of the international agenda on human rights compliance, the initial effectiveness of the ICC is a result of various naming and shaming campaigns by national governments and non-governmental actors (NGOs). The effort to publicize major crimes and violations gives the ICC added visibility. I seek to address the effectiveness of international institutions in protecting human rights in my thesis by examining one of the most recent and controversial of these institutions, the ICC. My thesis is divided into three parts. First, I specify the purpose of the ICC. Second, I show that, under certain conditions, the ICC is effectively realizing its purpose. Third, I argue