Bush’s Delicate Dilemma on Darfur
By Jim Lobe
WASHINGTON, Jan 24, 2005 (IPS) — If U.S. President George W. Bush wants to show the world, particularly the European Union, a more multilateralist face in his second term, a special United Nations commission of inquiry that has been investigating war crimes in Darfur, Sudan is about to hand him a golden opportunity.
But there will be a cost, albeit more in pride than in principle.
The commission, which submits its report to U.N. Secretary General Kofi Annan Tuesday, is expected to find that war crimes have indeed been committed and to further recommend that the case be handed over to the International Criminal Court (ICC) in The Hague, one of the administration’s biggest global bugaboos.
If, consistent with his unrelenting hostility to the ICC, Bush orders the U.S. to veto such a referral when it comes before the Security Council in early February, any doubts that he will continue on the same unilateralist trajectory on which he set U.S. foreign policy in his first term should be set aside.
If, on the other hand, Washington either votes ‘yes’ or, as considered more likely, abstains on the referral, the move will doubtless be hailed as an important signal that Bush is serious about rebuilding U.S. alliances and reducing its diplomatic isolation.
It would also give him a major public-relations boost in advance of his visit next month to Europe, which has been the ICC’s strongest supporter.
Until late last week, it appeared that the administration had decided to veto such a referral.
“We will not support efforts by the international community to use the Security Council as a way of legitimising the ICC,” the Bush administration’s war crimes ambassador, Pierre Prosper, told the National Journal last week in what was taken as a clear indication that the veto was in the offing.
Instead, the administration has been pushing for the Security Council to establish an ad hoc tribunal similar to those set up for trying war crimes in Rwanda and the former Yugoslavia, even though U.S. officials have long complained about their expense and duration.
But the European Union (EU) has adamantly opposed this alternative, noting that the original decision to establish the ICC derived from frustrations over the costs and delays involved in setting up and running separate tribunals.
As the EU dug in, officials told reporters late last week that, despite Prosper’s remarks, no final decision had yet been made, while Rep. Frank Wolf, a Bush loyalist who has also pushed hard for action in Sudan, called publicly for the administration to show greater flexibility.
At the same time, several prominent attorneys who have defended the administration’s scepticism about multilateral treaties suggested that the case was still open.
“One should never cut off one’s nose to spite one’s face,” said a former Justice Department official who has roundly criticised the ICC on the editorial pages of the staunchly neo-conservative Wall Street Journal and Weekly Standard.
But the appearance Monday in the Washington Post of a column calling for the administration to support an ICC referral by the former head of the Justice Department’s Office of Legal Counsel, Jack Goldsmith, offered new hope that the administration might indeed come around.
“We see this as very significant,” said Heather Hamilton, vice president of programmes for Citizens for Global Solutions (CGS), formerly the World Federalist Association, in a reference to the column by Goldsmith who was known to be ideologically compatible with the administration’s unilateralist tendencies.
“He’s saying, ‘You might not like this, but this is frankly what we originally envisioned the Court being there for”‘.
In his article, Goldsmith conceded the administration may indeed find itself “in a bind” given its strenuous efforts to negotiate bilateral agreements that ban other nations from transferring U.S. citizens to the ICC’s jurisdiction, even as it leads international efforts to hold Sudan accountable for war crimes and even “genocide”, as Secretary of State Colin Powell called it last September, in Darfur.
But Goldsmith went on to argue that a Security Council referral would be perfectly consistent with the long-held U.S. policy that only the Security Council, where Washington has a veto, should have the authority to initiate ICC prosecutions against citizens or officials from non-ratifying nations. Under the Rome Statute, the ICC’s chief prosecutor may initiate actions on his own, as well.
“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 said.
With respect to Prosper’s remarks, Goldsmith argued that “fears of ‘legitimising’ the ICC are overstated. .For better or worse, the ICC is not going away anytime soon”.
In addition to winning political support among the Europeans, U.S. backing for a referral would give the U.S. leverage in seeking tougher sanctions against Sudan if it were part of a larger package, he continued, and make it politically more difficult for China and Russia to veto such a measure.
Bush might be more inclined to veto an ICC referral if the case had not involved Sudan, according to one Congressional aide who noted that some right-wing lawmakers like Wolf, while generally hostile to the ICC, are even more opposed to Khartoum.
“The Christian Right has done more on Sudan than any other single constituency,” the aide told IPS. “If an ICC referral is the best way to get serious sanctions imposed against the regime, then they’ll rally behind it, regardless of what Bush thinks about the ICC.”
Also helpful at this point is the decline in influence within the administration of the outgoing undersecretary of state for arms control and international security, John Bolton.
Bolton saw in the ICC a major threat to Washington’s sovereignty, and conceived the strategy of canceling tens of millions of dollars in military and economic aid for poor countries that ratified the Rome Statute without signing an accord with Washington promising that they would never submit a U.S. citizen to the ICC’s jurisdiction.
Bolton, who once told the Wall Street Journal that signing the letter to the U.N. renouncing Washington’s signature on the treaty establishing the ICC, the Rome Stature, was “the happiest moment of my government service”, had hoped to be promoted to deputy secretary of state or deputy national security adviser in Bush’s second term but now appears headed either to Vice President Dick Cheney’s office or to the private sector.