Long arm of the law may actually reach Darfur (if the U.S. lets it) Posted by Suzanne Nossel

It's gonna be a long night at UN headquarters, with the Security Council in the endgame of a months-long debate over Darfur.  It's expected that provided they can ram through a six-fold belt-and-suspenders approach to ensuring that Americans serving in Sudan will never be subject to international justice, the US will abstain on a resolution that would--among other measures to address the Darfur crisis--refer Sudanese war crimes cases to the International Criminal Court in the Hague.

(See earlier post on this arguing that the US has nothing to worry about in terms of Americans being hauled before the court, and the comments by the estimable Jeffrey Laurenti and others.  No, Jeff, American-style investigations into alleged war crimes are probably not beyond international reproach.  But as a practical matter any attempt by an international court to assume jurisdiction over American nationals against the U.S.'s would make George Wallace in the schoolhouse door look like the welcome wagon.)

If this goes through as expected, at least two points jump to mind:

First off, attempts to influence Bush Administration policy are not futile.  An NGO coalition got together and pushed hard on the ICC referral.  The Security and Peace Institute was a big part of this effort.  I have worked as a U.S. diplomat at the UN and know first hand how tough it is to corrall the world body even when you speak on behalf of its largest member and contributor.  So when I first heard of this NGO effort I saw little chance they'd affect the outcome of the UN debate.  Obviously a host of diplomatic considerations came into play, and the organizations did not change U.S. policy single-handedly.  But they made a difference here and can make a difference elsewhere.  We should not give up on trying to influence policy in the here-and-now.

Relatedly, we need to take credit for our successes.  I am looking forward to seeing how the Administration will spin this--likely as a courageous stand on behalf of American servicemembers.   But the truth is that conservatives have resisted mightily calls to refer Darfur to the ICC.  They made a convoluted argument that, notwithstanding the US's longstanding position that international tribunals cost too much and are inefficient, rather than relying on the ICC a new, separate, ad hoc Court ought to be created for Sudan (the Argentinians and others were up in arms over the needless excess cost of this approach).  Under pressure from critics, they were forced to reverse themselves and accept the result progressives pushed for all along.   The ICC is not perfect and needs to be further developed, but nonetheless this is a victory for the core belief in the need for durable, empowered international institutions, and we ought to claim it.

The second point is that, indispensable nation though we are, the rest of the world can and will move ahead without us when we choose to stand outside multinational organs and treaties.  When they do so, try as the U.S. government may to hold out against their efforts, the press of events, logic, world opinion, and our own public has the power to suck us in.   

In this case, its ideals that were to a significant extent made-in-the-USA--accountability, the rule of law, justice for all--that have propelled global support for the ICC, and are now pulling even a reluctant U.S. government into its orbit.  U.S. abstention on this resolution is the camel's nose under the tent of ultimate acceptance of the ICC.  Provided the Court performs, there will be no turning back. 

When it comes to the next treaty or body that we don't like, will we stand apart in protest, or--as President Clinton advocated vis-a-vis the ICC--sit down at the table and try to steer the deliberations to suit U.S. interests.  It's too early to say, but the outcome of this sleepless night at the UN will help determine the answer.

Comments

[VD]

The International Criminal Court is aptly named for it is criminal. Since it began operations in 2002, it has burned through nearly $1 billion and has not prosecuted a single war criminal, let alone comforted a single surviving victim of war crimes. Take a look at the workload of this organization that burns through roughly $300 million per year.

"Given these concerns, I will not, and do not recommend that my successor submit the Treaty to the Senate for advice and consent until our fundamental concerns are satisfied." - President William J. Clinton, 31 DEC 2000

As far as I know, those concerns remain to this day and no attempt has ever been made by the ICC to address those concerns.

http://www.icc-cpi.int/cases.html

http://clinton4.nara.gov/textonly/library/hot_releases/December_31_2000.html

[Terry]

You goddam hypocrites. If you didn't support the invasion of Iraq how can you support military intervention in Sudan?

Don't blame this shit on the US. Its the UN's problem.
If they can't muster up enough troops thats their problem.
And doesn't that tell you what the UN is worth? Not even a pile of shit.

[DBL]

Suzanne:

The problem with the ICC is that its jurisdictional statute confers jurisdiction when the state of the accused is "unwilling" to take action against the accused. That means if a US prosecutor decides not to prosecute a claim that a US military officer committed a war crime, either because the prosecutor thought the action did not constitute a war crime or as a matter of prosecutorial discretion, the ICC prosecutor would have jurisdiction to prosecute. What American president, whether Democratic or Republican, could ever allow this to happen?

If you think this is far fetched, consider that there are a fair number of people who claimed that the attack on Fallujah constituted a war crime because a lot of civilian casualties resulted (I think the technical claim is excessive use of force against civilian population). How would you feel if the ICC prosecutor decided to prosecute the CINCOM Commander and Chairman of the Joint Chiefs of Staff for war crimes based on these allegations? In your opinion, would that be a prosecution to which the US should submit and defend on the merits?

[praktike]

Welcome to blogging, Suzanne. :)

[fling93]

You goddam hypocrites. If you didn't support the invasion of Iraq how can you support military intervention in Sudan?

By that argument, Bush is a hypocrite as well.

Don't blame this shit on the US. Its the UN's problem.
If they can't muster up enough troops thats their problem.
And doesn't that tell you what the UN is worth? Not even a pile of shit.

That's because countries like the U.S. don't want a UN that has the power to actually deal with problems.

[fling93]

Gawd, I hate comments that strip HTML without any preview button. Let me try that again:

"You goddam hypocrites. If you didn't support the invasion of Iraq how can you support military intervention in Sudan?"

By that argument, Bush is a hypocrite as well.

"Don't blame this shit on the US. Its the UN's problem.
If they can't muster up enough troops thats their problem.
And doesn't that tell you what the UN is worth? Not even a pile of shit."

That's because countries like the U.S. don't want a UN that has the power to actually deal with problems.

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