From: wolda002@umn.edu
Date: Wed Jul 23 2008 - 18:24:18 EDT
The Wall Street Journal
The ICC's Blow to Peace Hopes in Darfur
By DAVID B. RIVKIN JR. and LEE A. CASEY
July 23, 2008; Page A15
Luis Moreno-Ocampo, the prosecutor for the International Criminal Court
(ICC), has just made a mistake that will make it harder to help people
suffering in Darfur. Last week, he filed charges against Sudanese President
Omar al-Bashir.
There is no doubt that terrible crimes have been committed in Darfur. But
the international community has been unwilling to use military force to
stop the atrocities, and this indictment takes Darfur's second-best hope
for peace -- a diplomatic settlement -- off of the table.
The ICC was established in 2002, when 60 countries ratified the "Rome
Statute of the International Criminal Court." Today it can investigate,
prosecute and punish serious violations of international law, including
genocide, war crimes, crimes against humanity and the yet-to-be-defined
crime of "aggression." It can also follow-up on "referrals" from the U.N.
Security Council. In 2005, the council made such a referral with respect to
Sudan's campaign of mass murder in Darfur.
Under international law norms, the ICC can prosecute citizens of signatory
states. But it cannot prosecute citizens of nations, such as Sudan, that
are not party to the ICC.
That puts Mr. Ocampo's indictment in a precarious position. Does the
Security Council have the power to bind, in this fashion, U.N. members that
have not joined the ICC?
Heads of state are not, of course, "above the law." But they are not
subject to the judicial process unless and until their own state consents.
It is true that the post-World War II war crimes trials in Germany and
Japan targeted Axis leaders (with the exception of Emperor Hirohito). But
they were exceptions and involved unique circumstances, in which the states
concerned had surrendered their sovereignty to the Allies, who consented
for them.
What's more, in 2002, the U.N.'s International Court of Justice -- a
separate institution from the ICC -- upheld the notion that a country's
most senior officials could not be prosecuted unless it had given its
consent. In that instance, Belgium had tried to prosecute a Congolese
foreign minister for international criminal offenses under a theory of
"universal jurisdiction." The court ruled in favor of the Congo, finding
that the foreign minister enjoyed immunity from foreign prosecution.
The U.N. Security Council is not a judicial body, and any legitimate
authority it may have to subject member states to the ICC -- or its own ad
hoc international criminal tribunals like those for the former Yugoslavia
and Rwanda -- must be found in their onetime consent to the U.N. Charter.
The charter requires all members to assist in implementing Security Council
decisions.
At the same time, the ICC did not exist when Sudan joined the U.N. in 1956,
and referrals to such an institution were hardly foreseeable. Perhaps more
to the point, Sudan has now asserted its primacy over matters involving
Darfur, effectively withdrawing whatever waiver of immunity that might be
implied from its accession to the charter.
Significantly, it is not alone in this view. After an emergency July 19
conference in Cairo, the 22-member Arab League announced "solidarity" with
Sudan and said that only Sudanese courts have jurisdiction there.
Prosecutions of the type undertaken by the ICC raise issues fundamentally
different from those involved in breaking an ordinary criminal conspiracy,
and can ultimately do more harm than good.
Here, that harm will be in making it more difficult for the diplomats to
achieve peace in Darfur. Branding Mr. Bashir, who may be the only man able
to guarantee that peace, as a "war criminal" changes everything. He can no
longer be engaged on anything like "normal" terms, his supporters have been
enflamed, and his incentives to reach an accord severely reduced.
The ICC prosecutor, who is selected by the ICC state parties and ultimately
accountable to no one for his actions, has muscled his way into the
negotiating room and seized the leading role. No agreement can be reached
now without him.
International justice, especially for heads of state, works best after
regime change. This was the lesson of the Nuremberg trials, of Saddam
Hussein's trial and punishment by a liberated Iraq, and of the 1990s Balkan
wars -- where Serbian President Slobodan Milosevic was turned over to the
U.N.'s ad hoc court in The Hague after he was toppled. (His Bosnian
lieutenant, Radovan Karadzic, has only just been arrested by Serbian
authorities after more than a decade on the run.) By acting while Mr.
Bashir was still in office, with no prospect of forcing him out, the ICC
prosecutor has just made Darfur's tragedy harder to resolve.
Messrs. Rivkin and Casey, Washington attorneys, served in the Justice
Department under Presidents Ronald Reagan and George H.W. Bush.
See all of today's editorials and op-eds, plus video commentary, on Opinion
Journal1.
And add your comments to the Opinion Journal forum2.
URL for this article:
http://online.wsj.com/article/SB121677143125475501.html
Hyperlinks in this Article:
(1) http://online.wsj.com/opinion
(2) http://forums.wsj.com/viewtopic.php? t=3407
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