The Cable

EXCLUSIVE: ICC to UN: Investigate Your Alleged Coverups in Darfur

The International Criminal Court's prosecutor will appeal to U.N. Secretary-General Ban Ki-moon on Tuesday to conduct a "thorough, independent and public inquiry" into allegations -- first disclosed in a Foreign Policy investigation -- that the U.N. systematically covered up crimes against civilians and U.N. peacekeepers in the U.N.-African Union Mission in Darfur, also known as UNAMID.

The request by Fatou Bensouda, the ICC's Gambian prosecutor, for a U.N. investigation into wrongdoing within its own ranks is unprecedented. It comes more than two months after Foreign Policy published a three-part series detailing the mission's failure to protect civilians under their watch or to seriously investigate evidence indicating that the Sudanese government and its proxies may have targeted U.N. blue helmets.

The FP report -- which was based on thousands of pages of highly confidential internal U.N. documents from the mission's former spokeswoman, Aicha Elbasri -- prompted calls in April for a U.N. investigation by a coalition of Darfuri rebel groups, including some that are themselves accused of wrongdoing in the documents. On April 17, the leaders of three Darfuri rebel groups -- Abdel Wahid Nur, Minni Minnawi, and Jibril Ibrahim -- appealed to the U.N. Security Council, calling for an "immediate launch of investigation into the serious allegations raised by Dr. Elbasri against UN officials and the deliberate misinformation that has characterized reports on Darfur since 2008."

But the U.N. Security Council and the U.N. secretariat have yet to act on the reports. U.N. officials say they already recognized serious flaws in UNAMID's performance, and that they had conducted a major "strategic review" of U.N. operations in Darfur that recommend a series of reforms that would require better reporting from the field and urge the blue helmets to more actively protect civilians in distress.

But officials say the prosecutor's call for an independent investigation suggests she is not satisfied an in-house "strategic review" by the U.N. Department of Peacekeeping Operations will be adequate in addressing the mission's shortcomings.

In a report to be presented to the U.N. Security Council Tuesday morning, the prosecutor's office is set to say that it "is concerned about recent allegations of manipulations of UNAMID reporting and of intentional cover-up of crimes committed against civilians and peacekeepers, in particular those committed by the Government of the Sudan forces.... These allegations are supported by documentation from the former UNAMID spokesperson."

The report -- a copy of which was obtained by Foreign Policy -- calls on U.N. Security Council governments that are members of the Hague-based international court -- Australia, Britain, Jordan, France, Luxembourg, and Nigeria -- to support the call for an investigation.

Australia, Britain, France, and Luxembourg are expected to raise concerns about the allegations in Tuesday's Security Council briefing, but it is not clear whether they will support the prosecutor's request. A British spokeswoman, Iona Thomas, said, "We are concerned about the allegations that the prosecutor references [in her report] and some of the findings and recommendations of the strategic review of UNAMID should help tackle some of the mission's failings."

The debate over holding Sudanese war criminals accountable for their crimes comes as Sudan is facing an escalation of violence, including a surge in the aerial bombardment by the Sudanese Air Force of villages in the rebel stronghold of East Jebel Marra. The emergence in February of a pro-government militia known as the Rapid Support Forces, comprised of roughly 6,000 fighters, has been followed by a series of ground offensives through south and north Darfur, where pro-government militia have torched villages and killed civilians suspected of links to the rebels.

"Reportedly, the movements and military operations of the Rapid Support Forces are arranged in coordination with the General Command of the Sudanese Army," the report states. Their operations "show a similar pattern of the indiscriminate and disproportionate attacks" attributed to the pro-government janjaweed that carried out some of the worst atrocities during the height of the region's violence between 2003 and 2005.

The report also accuses a coalition of rebel groups, operating under the banner of the "Darfur joint resistance forces," of mounting attacks on civilians in north Darfur in March. The rebels displaced about 81,000 people, set homes on fire, plundered local property, and killed as many as 31 civilians.

Bensouda and her predecessor, Luis Moreno-Ocampo, have struggled for years to secure U.N. cooperation for the court's efforts to hold Sudanese President Omar Hassan al-Bashir and two other Sudanese officials accountable for mass atrocities in Darfur between 2003 and 2005, where as many as 300,000 civilians died. The former ICC prosecutor issued arrest warrants for the Sudanese leader in July 2008. Bashir has since been charged with genocide and other war crimes.

In Tuesday's report, Bensouda accuses Sudan of failing to abide by a slew of U.N. Security Council demands over the past decade, and expresses concern over the U.N.'s high-level contacts with senior Sudanese officials wanted by the court, citing a "lengthy" January 2014 meeting at an African Union Summit in Addis Ababa, Ethiopia, between the U.N. Deputy Secretary-General Jan Eliasson and the Sudanese president. She calls on the U.N. to publicly explain its justification for such contacts. The prosecutor's "office notes with great concern that despite the fifty-five UN Security Council resolutions adopted on the Sudan since 2004, hardly any of them have been implemented," according to the report. "Repeated demands from the Security Council to the government of Sudan, ranging from disarming the Janjaweed to ending aerial bombardment, to ending impunity and brining justice and accountability to victims, have gone deliberately unfulfilled."

The prosecutor also cites concern about reports that UNAMID reporting may have been "manipulated" by a small group of officials within the mission, saying there "are clear warnings that the international community may not be adequately informed about the situation in Darfur," according to the report. "UN reports are an important and increasingly unique source of public information about the situation in Darfur, and must be held to the highest standard for the sake of the victims in Darfur."

AFP/ Getty Images

The Cable

Argentina Could Default After Supreme Court Ruling

The U.S. Supreme Court dealt a blow to Argentina's already fragile economy Monday when it sided with hedge funds that have zealously pursued the country to repay its debts.

Argentina had appealed to the court in its decade-long legal battle to hold off bondholders seeking to seize the country's assets all over the world.

The court's decision is a win for so-called "vulture funds" that buy up a country's distressed debt, often after other creditors have agreed to a write-down, and then fight to be paid back in full. It's a loss for Argentina's struggling economy, which could be hit with another default. And it could make it harder for other countries to walk away from new debts.

Argentine bonds have fallen 6.6 cents on the dollar to 75.09 cents, according to Bloomberg. President Cristina Fernández de Kirchner is expected to speak Monday evening and could address whether she will talk to the holdout creditors or default.

"The risks are high that they're going to end up defaulting," said Robert Kahn, a senior fellow at the Council on Foreign Relations who has worked for the World Bank and the IMF.

Kirchner faces that stark choice because the Supreme Court declined to hear Argentina's appeal on Monday. The country hoped to overturn a lower court ruling that Argentina pay holdouts at least $1.33 billion. After a financial crisis in 2001, Argentina defaulted on nearly $100 billion worth of debt. Most bondholders -- 93 percent -- eventually accepted that the country wasn't going to pay and agreed to exchange their bonds for new ones worth cents on the dollar. But a small percentage held out. Others bought the bonds while they were cheap and then sought to force Argentina to pay in full. Now, the court's decision forces Argentina to negotiate a resolution with all the holdouts in the next two weeks or face default.

In pursuit of those debts, the hedge fund NML Capital, a subsidiary of Elliott Capital Management, pursued Argentine assets far and wide, even seizing an Argentine naval vessel in Ghana in 2012. The United Nations maritime court eventually told Ghanaian authorities to let the boat go, but that wasn't the end of the hedge fund's treasure hunt. In an effort to find out more about Argentina's money, NML served subpoenas to U.S. and Argentine banks. Argentina tried to stop the fund's snooping by arguing it violated the country's sovereign immunity. Siding with the hedge fund for the second time Monday, the Supreme Court ruled that NML could seek bank records in its attempts to collect on its debts. Political and military assets are still immune, according to U.S. law, but the high court's ruling makes it easier to interfere with the country's payments to other creditors or banks.

"Now it is time for Argentina to honor its commitments to its creditors, which would benefit both Argentina's economy and its international standing," an NML spokesman stated via email.

For critics of the hedge funds' pursuit, who argue countries should be able to seek freedom from unpayable debts just as companies and individuals do in bankruptcy, the ruling was a defeat.

"I am blown away by the decision," said Eric LeCompte, executive director of Jubilee USA Network, a group advocating debt forgiveness for developing countries. "For heavily indebted countries supporting poor people, this is a devastating blow. These hedge funds are equipped with an instrument that forces struggling economies into submission."

Economists say it's not yet clear how far-reaching the impact of the decision will be. Argentina has fought harder against paying its holdout creditors than most countries.

"You have an extremely determined creditor and an extremely determined debtor pushing a dysfunctional system to the limit," said Anna Gelpern, a Georgetown law professor and expert on debt contracts. She said the case raises the question of how far an investor could reach to find a country's assets around the world.

"And the answer is very far," she said.

Douglas Rediker, a former IMF board member and a fellow at the Peterson Institute, said making countries more reticent to borrow a lot of money may not be a bad thing.

"One of the outcomes of this ruling could be that you're unable to issue that much debt without making the hard choices sooner," he said. "You could argue most countries are better off, not worse."