Demagogue

I don't normally disagree with Samantha Power, but she has an op-ed in the New York Times today on the Bush administration's opposition to the International Criminal Court, which concludes thusly

Skeptics say that international courts will never deter determined warlords. Musa Hilal, the coordinator of the deadly Janjaweed militia in Darfur, gave me a very different impression when I met with him soon after the Bush administration had named him as a potential suspect. He had left Darfur and was living in Khartoum, courting journalists in the hopes of improving his reputation. Almost as soon as I sat down with him, he began his defense. Like his victims, he had only one place on his mind. "I do not belong at the Hague," he said. Surely President Bush doesn't want to find himself on the side of someone his administration considers a killer.

Opposing the ICC in no way puts Bush (or the US) "on the side" of genocidal killers. Bush is not trying to protect Hilal or the Janjaweed, he is simply reluctant to embrace the ICC.

I, like so many others, see the administration's irrational hatred and fear of "legitimizing" the ICC as utterly shameful but, that said, I fail to see how referring the crimes in Darfur to the International Criminal Court is, at this point, really anything more than a meaningless gesture.

First of all, Sudan is not a party to the Rome Statue so the court has no automatic jurisdiction. Thus, the only way for the court to get involved in on a referral from the Security Council. Such a referral, like most everything else involving the Security Council, comes with a veto threat from any of the five permanent members - 3 of which seem clearly opposed to the ICC (and 2 out of the 3 have close economic ties to Sudan.) Even if the Bush administration dropped its opposition to the ICC, I can't imagine that either China or Russia would let any referral go forward.

But even if, by some miracle, the case does get referred to the prosecutor, the ICC is obligated to defer to national judicial proceedings. Khartoum is already proclaiming their willingness to investigate and prosecute those responsible, so unless the court's Pre-Trial Chamber determines that Sudan is "unwilling or unable genuinely to carry out the investigation or prosecution," the ICC must defer to this investigation and/or prosecution.

I highly doubt that Sudanese authorities are going to be genuinely willing to investigate or prosecute those responsible, but any such official determination from the ICC will likely take months. Perhaps, as Power and others have suggested, the simple threat of ICC prosecution will be enough to stop the violence and compel Khartoum to prosecute - I don't know, but various threats from the international community haven't accomplished much thus far.

This wrangling over whether or not to refer the case to the ICC is simply distracting those in power from their responsibility to actually do something to stop the violence. In 1994, the Clinton administration struggled over the use of the term "genocide" to describe what has taking place in Rwanda out of fear that it might require them to actually "do something." The last thing in the world they wanted to was have to "do something" so they avoided the term.

A decade later, the international community seems to be struggling with the prospect of referring the current genocide to the ICC, mainly because it seems to be the easiest way for them to appear to be "doing something." But symbolic gestures cannot excuse more than a year of inaction. The Security Council needs to be debating how to get tens of thousands of peacekeepers on the ground with a broad mandate to protect civilians, not theoretical questions/problems/fears about the International Criminal Court; they can have that discussion once a semblance of peace has been established and the two million refugees and IDPs feel safe enough to return to their destroyed villages and bury their loved ones.