Monday, March 14, 2005

THE HAGUE, Netherlands. — For years, painstaking diplomacy was inching its way toward creation of an international criminal court for dealing with such vexing matters as war crimes, genocide and crimes against humanity. But by 1998, a slew of forward-leaning non-governmental organizations, working through a coalition of “like-minded nations” principally in Europe and Canada, got hold of the process and produced what sits in The Hague today as the International Criminal Court — without the United States as a party to the treaty that created it.

From the beginning, the United States considered the Rome Statute, as the treaty is known, to be “seriously flawed.” Nevertheless, then-President Clinton signed the treaty shortly before leaving office. The Bush administration unceremoniously withdrew the U.S. signature in 2002 and began a diplomatic initiative to mitigate its potential for making mischief in the context of U.S. global responsibilities.

The U.S. objections are essentially two: First, the treaty asserts the court’s jurisdiction, at least in some notional cases, over citizens of nations that are not a party to it. The United States has long rejected in principle any such application of international law; in addition, in practical terms, there were worries that U.S. troops participating in military or peacekeeping operations might be hauled before the ICC on the basis of dubious accusations. Second, the United States wanted a procedure whereby such a court would take up investigations only with the authorization of the U.N. Security Council (where, of course, the United States has a veto). The Rome Statute allows the ICC prosecutor to begin investigations on his own initiative, raising questions of accountability.

I fully agree with critics of the ICC that these are genuine problems. Moreover, they are unnecessary: A treaty that took these concerns into account would have created a court no less potentially effective in its operations, and certainly more so in that the United States could have been on board.

The concern that the treaty would invite political abuse of the ICC has been amply vindicated by some 1,400 dubious requests to the prosecutor for investigations from ax-grinding NGOs — many involving the supposed “war crimes” of Tony Blair, George W. Bush, Silvio Berlusconi, among others. The court’s prosecutor is highly unlikely to find a basis for proceeding in any of them. And that’s good, because it will likely take many years of precedent-setting good behavior by the court before the United States can ever come to regard its principled objections to the court’s statute as met and settled favorably by the court’s practice.

Now, however, comes a proposal for the Security Council to refer to the ICC the ghastly situation in Darfur, Sudan, where 200,000 people have died over the past two years in what the U.S. government has called “genocide.” (I should note that I am involved in staffing a congressionally mandated task force looking into U.S.-U.N. relations, for which I receive compensation; the views expressed here are my own.) The question thus becomes whether the United States should support such a referral, given its position on the ICC.

The answer seems to me to be that the United States should — provided. In the first place, the fact that the Security Council will be doing the referring means that the stated U.S. objections to other jurisdictional matters do not arise: The United States can simply note, in supporting the referral, that its objections to the Rome Statute stand. The United States supported Security Council resolutions creating special tribunals for former Yugoslavia and Rwanda. In this case, the ICC is in effect reconstituted by Security Council resolution as such a special tribunal. If it accepts the Security Council referral, it will be bound by the terms of the resolution.

Second, we do need a tribunal for Darfur. War crimes have certainly been committed, and they need to be investigated. The “crime base” for future prosecutions needs to be established while the evidence and witnesses’ recollections are still fresh. The ICC looks to have the capacity to do this starting now. A pragmatist would want to know how well it would perform under the circumstances of a U.N. referral.

Now, “provided”: There are some who would be content to let an ICC referral mask inaction to prevent mass killing in Darfur. That is unacceptable. A war crimes investigation makes moral sense only in the context of international action to halt the killing there. Otherwise, it is just a self-satisfied fig leaf.

Second, relatedly, there are some who think that the Darfur situation represents mainly an opportunity to leverage the United States into qualified acceptance of the ICC or at least to embarrass the United States over the ICC. Sorry, Darfur isn’t about the ICC. Darfur is about the challenge of keeping people alive — which in turn will entail being in a position to punish those guilty of war crimes to date.

The United States can likely turn agreement to the ICC referral into leverage for more effective international action. It’s only the latter that offers hope in Darfur.

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