Give a chnace to International Court

Editorial, The Economist

Feb 3, 2005 — “NEVER again”, the world said after the Holocaust. “Never again”, it repeated after Cambodia, Bosnia, Rwanda. Yet two years after the beginning of another potentially genocidal conflict in Sudan’s western province of Darfur that has already claimed 70,000 lives and driven nearly 2m from their homes, the world is again standing idly by. Despite a UN Security Council resolution last July promising to do everything possible, little has been done: no military intervention bar a token force of 1,000-odd soldiers from the African Union, no UN sanctions, no punitive measures of any kind. Yet some 10,000 lives are still being lost every month as the bombing, slaughter and rape continue.

The publication this week of a long-awaited report from a UN commission on Darfur offers a new opportunity for action. Although it found no clear evidence of genocide, it says that “no less serious and heinous” crimes have been perpetrated. Laying the blame on all parties to the conflict, it “strongly recommends” that the Security Council refer the situation to the International Criminal Court (ICC) for possible prosecution of the guilty.

This would be a first for the world’s first permanent war-crimes court. But it poses a dilemma for the United States. As the only country to have declared that the atrocities in Darfur amount to genocide, it has been in the forefront of those pressing for tougher action against Sudan and “accountability” for the perpetrators. But it strongly opposes what President George Bush has castigated as “a foreign court…where unaccountable judges [could] put our troops and officials at an unacceptable risk of politically-motivated prosecutions.”

Protesting that the United States does not want to be “party to legitimising the ICC”, American officials propose setting up instead an ad hoc tribunal based in Tanzania under the auspices of the African Union to try those responsible. But this would waste time and money. The ICC, which is already up and running, was tailor-made to address cases such as this.

Since the United States withdrew its signature from the ICC in May 2002, it has waged a relentless campaign against the court, threatening to cut American aid to countries which have ratified its statutes unless they sign bilateral agreements pledging not to hand over American suspects to the court. It has also tried to press the Security Council into granting its citizens blanket immunity from the court, threatening to withdraw its support from UN peacekeeping missions unless it did so.

And yet America has little need to fear the court. Its statutes already contain ample safeguards to protect every country against frivolous prosecutions. Under the “principle of complementarity”, it may try someone only if their own country is genuinely unable or unwilling to do so. Only if the investigations are deemed bogus and designed solely to shield the suspect from criminal responsibility can the ICC intervene. Even then, a seven-judge pre-trial chamber must decide that there are “reasonable” grounds. All troops involved in UN peacekeeping missions are exempt from prosecution.

Of the 139 countries which have signed up to the ICC, 97 have so far become full “state parties” after ratifying its statutes. They include all 25 members of the European Union, all of America’s NATO partners bar Turkey, and nine of the Security Council’s 15 members. Mr Bush cannot easily do an about-turn on the ICC. But by abstaining on a resolution that referred Darfur to the court, he could still help the cause of justice.