Court Surface
By Marisa Katz, The New Republic
Feb 15, 2005 — The Bush administration has come under fire lately for opposing a United Nations proposal to try Darfur’s alleged war criminals at the International Criminal Court. While other Security Council members have indicated their support for sending those responsible for the ongoing violence in Sudan’s western province to the Hague, the United States has stalled any move toward prosecution by arguing instead for a U.N.-run tribunal based in Tanzania. New York Times columnist Nicholas Kristof has called it “madness” for the president “to put his ideological opposition to [the ICC] over the welfare of the 10,000 people still dying every month in Darfur.” In the same vein, human-rights advocate Samantha Power mocked the White House last week in a Times op-ed. “[T]he Bush administration,” she wrote, “can’t decide what it dislikes more: genocide or the International Criminal Court, which aims to punish it.”
Bush’s critics have a valid point. It is ridiculous to reject ICC involvement in Darfur out of hand, based on a hypothetical fear of politically motivated prosecution of U.S. personnel at some future point–after all, we are talking about narrow Security Council authorization for the trial of perpetrators in a conflict where the United States doesn’t even have soldiers on the ground. At the same time, such criticism obscures the possibility that both the U.S. and the U.N. proposals for war crimes tribunals are disingenuous–modest gestures of concern when what is really needed is serious and immediate action. Moreover, the administration’s critics have too readily accepted the assumption underlying the tribunal proposals: that the threat of prosecution can deter ongoing atrocities. It is going to take more than lawyers and wishful thinking to stop the genocide in Darfur.
It would be easier to take Western proposals for war-crimes tribunals at face value if they hadn’t been offered as a substitute for intervention in the past. In the case of Bosnia, for instance, President Clinton refused to send American ground troops, saying, “We don’t want our people in there, basically in a shooting gallery.” But as Boston Globe reporter Elizabeth Neuffer describes in her authoritative account, The Key to My Neighbor’s House: Seeking Justice in Bosnia and Rwanda: “A war crimes tribunal emerged as a nearly risk-free way to do something forceful that involved no troops on the ground. A tribunal resonated with the romantic legacy of Nuremberg and provided convenient political cover. … ‘It was a way [for the administration] to avoid doing other things,’ recalled one human-rights advocate who lobbied for the tribunal.”
Likewise in Rwanda. The United States and other Western powers resisted the Tutsi-led opposition’s calls for a war-crimes tribunal amid the violence in May 1994. But by the end of June, when reports confirmed that more than a half-million people had been killed while the world watched, the notion of a tribunal was more appealing. Neuffer quotes then-State Department assistant secretary John Shattuck: “There had to be something comparable to the Yugoslav Tribunal. … Particularly as there had been no military response to stop the genocide.” (Ironically, Rwanda ultimately voted against the Security Council resolution establishing a war-crimes tribunal in Tanzania. The Rwandan government that came into power after the genocide decided it wanted a faster, domestic tribunal that would include the death penalty.) So while in Bosnia Western powers used their support for a war-crimes tribunal as political cover for not taking on a more active role in the heat of the conflict, in Rwanda a tribunal provided political cover after the fact. In both cases, courts could be used to assign blame to specific actors–and in the process free Western powers from blame for their inaction.
There are echoes of Bosnia and Rwanda in the proposals for a war-crimes tribunal for Darfur. The members of the Security Council–including the United States–have been reluctant to volunteer their own troops, expand the size or mandate of the small contingent of African Union cease-fire monitors now on the ground, or do anything more than threaten to consider sanctions. Talk of a war crimes tribunal, however, allows the appearance of moral concern while avoiding the messy politics of intervention. It is a way for the great powers to assuage their guilt as they stand by and do little else.
Whether it is a way to stem the violence, however, is far from clear. Princeton political scientist Gary Bass, author of Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, says that evidence for the deterrent power of such tribunals is so far unconvincing. “Hanging your hat on the deterrence argument is the wrong way to go,” he told me last week. “You’re dealing with the behavior of the most radical actors. People don’t do genocide in whimsical ways. It’s a major project. These people may not even be deterred by military force.” Bass notes that legalistic threats may have particularly limited impact when mass killings are well underway, as in Darfur, since the perpetrators are already criminally liable and thus may carry on, thinking they have nothing to lose.
Indeed events in the former Yugoslavia and Rwanda cast doubt on the ability of war crimes tribunals to prevent violence. The massacre of 7,000 Bosnian Muslims at Srebenica in July 1995 came two years after the creation of the Hague court. The threat of prosecution did not deter Milosevic’s forces from their mass murder in Kosovo in 1999. Nor did it change the calculus of some of the Hutus accused of directing the Rwandan genocide, who could not be brought to trial because they had disappeared into neighboring Congo and were targeting the Tutsi population there. Some supporters of war-crimes tribunals have suggested that times have changed and that the choreographers of Darfur’s genocide are cowed by the prospect of being hauled into court. But Janjaweed militia leader Musa Hilal is clearly aware of the threat he will be prosecuted–he has defensively insisted, “I do not belong at the Hague”–and it doesn’t seem to have altered his behavior.
Over time, of course, war-crimes tribunals could contribute to the establishment of international legal norms, which in turn could deter potential war criminals of the future. That would require more money, staff, and consistent support than such tribunals have received to date. But that’s irrelevant for the people of Darfur. They need help now.