WASHINGTON - To human rights activists, the question before U.S. President George W. Bush this week is, which is the higher priority: undermining the new International Criminal Court (ICC) or bringing to justice the perpetrators of what Bush himself has called "genocide" in Darfur, Sudan?
To their dismay, the answer, so far at least, is he would rather discredit the ICC.
The Bush administration seems willing to sacrifice Darfur's victims to its ideological campaign against the Court.
Human Rights Watch
A long-awaited report by a special UN commission released Monday has concluded that "serious violations" of international humanitarian law have taken place in Darfur and that they should be referred by the UN Security Council to the ICC for investigation and prosecution.
While Washington's European and Canadian allies, among others, strongly support the recommendation, however, the Bush administration--which ironically has led efforts in the Security Council to hold Khartoum accountable for the abuses that have taken place in Darfur--is resisting the recommendation.
Instead, it is calling for the Security Council to set up a new ad hoc tribunal for Darfur, using the facilities of the international court in Tanzania that is currently prosecuting the perpetrators of the 1994 Rwandan genocide. Creating a new court will cost much more money and involve lengthy delays in order to recruit and train personnel and elect judges.
"We will not support efforts by the international community to use the Security Council as a way of legitimizing the ICC," according to Bush's war crimes ambassador, Pierre Prosper.
Washington's position has exasperated much of the human rights community and even some of Bush's supporters who have opposed the ICC in the past.
The ICC is already up and running and fully staffed. Moreover, according its advocates, launching proceedings immediately could help deter further attacks by government and Arab forces against the African population in Darfur. According to recent estimates, more than 300,000 Africans have died as a result of the violence over the last two years.
"The delay involved in setting up a new tribunal would only lead to the loss of more innocent lives in Darfur," said Richard Dicker, director of the International Justice program at Human Rights Watch who noted that fighting appears to have intensified in December and January. "The Bush administration seems willing to sacrifice Darfur's victims to its ideological campaign against the Court."
The UN commission--whose work was authorized by a resolution pushed through the Council by Washington last fall--found that, while the killings of the African population were both widespread and targeted, evidence of "genocidal intent appears to be missing, at least as far as the central government authorities are concerned."
"The conclusion that no genocidal policy had been pursued should not be taken in any way as detracting from the gravity of the crimes," it went on, noting that a court could decide that specific individuals were guilty of "genocidal intent." Moreover, "serious violations" of international law have taken place on a widespread and systematic basis, possibly amounting to "crimes against humanity," according to the commission.
Under the Rome Statute that created it, the ICC has jurisdiction over cases involving genocide, war crimes, and crimes against humanity. Because Sudan, like the United States, is not a party to the Court, only a referral by the UN Security Council would give it jurisdiction to act in the case of Darfur.
Under Bill Clinton, the United States signed the Rome Statute, but, in an unprecedented move in May 2002, the Bush administration renounced the signature and launched a major campaign to press both the UN and other nations to sign bilateral immunity agreements (BIAs) promising never to transfer U.S. nationals in their custody to the ICC's jurisdiction.
The administration has argued that the ICC threatens U.S. sovereignty and that, given Washington's military predominance and its unique responsibilities for maintaining international peace and security, its nationals are particularly vulnerable to politically motivated prosecutions by the ICC.
Although it has denied any intent to harm the Court, the administration has cut off tens of millions of dollars in military and economic assistance to some three dozen developing countries that have ratified the Statute but refused to sign BIAs on the grounds that to do so would violate the letter and spirit of the Statute.
It also withdrew from some UN missions when the Security Council decided last year not to extend an exemption from the ICC for nationals of non-ratifying nations. A total of 97 nations--including all members of the European Union, most of Latin America and the Caribbean, and many democratically elected states in Africa--have ratified the treaty, and 139 nations have signed it.
At the same time, the Bush administration has taken a leading role in trying to persuade the Security Council to impose sanctions on Khartoum to stop the killing in Darfur, a concern that has dominated its Africa policy over the past year.
Because none of its traditional allies are considered likely to support the creation of a new tribunal since the ICC already exists, the administration is faced with a choice of sticking to its ideological opposition to the Court or delaying, if not foregoing altogether, accountability on Darfur.
Some Republicans, among them, Rep. Frank Wolf --who has been deeply involved in Darfur--have urged Bush to show flexibility. In a significant departure from party orthodoxy, Sen. John McCain called last weekend for the United States to join the ICC, although he added that additional safeguards against politicized prosecutions would have to be negotiated.
Two prominent Republican lawyers who have opposed the ICC in the past have also called on Bush to reconsider. "One should never cut off one's nose to spite one's face," said Lee Casey, an attorney who has often attacked the editorial pages of the staunchly neo-conservative Wall Street Journal and Weekly Standard.
And, in another column published by the Washington Post last week, Jack Goldsmith--who headed the Justice Department's Office of Legal Counsel until last summer--argued that backing a Security Council referral to the ICC would be perfectly consistent with Washington's long-held policy that only the Security Council, where the U.S. has a veto, should have the authority to initiate ICC prosecutions against citizens of non-ratifying nations.
"The Darfur case allows the United States to argue that Security Council referrals are the ONLY valid route to ICC prosecutions and that countries that are not parties to the ICC (such as the United States) remain immune from ICC control in the absence of such a referral," he wrote, adding that the administration's fears of "legitimizing" the ICC were "overstated."
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