Unwitting Party to Genocide
The International Criminal Court Is Complicating Efforts to Save Darfur
By Stephen Rademaker
Thursday, January 11, 2007; A25
Over the past three years, more than 400,000 people have perished in the Darfur genocide. Fighting has intensified in recent months as diplomatic efforts to end the conflict have faltered. The government in Khartoum bears principal responsibility for the continued killing, but recently an unexpected obstacle to ending the bloodshed has emerged: the International Criminal Court (ICC).
Critics of the ICC predicted early on that it would be more a hindrance than a help to ending most conflicts. The threat of prosecution would rarely motivate both parties to stop fighting, they argued, but in many cases it would be powerful enough to convince at least one side that it was better off continuing to fight. Yet even the ICC's critics have been surprised by the degree to which this is being borne out in Darfur.
Much of the world agrees that to end the genocide a highly capable U.N. peacekeeping force must immediately be deployed to Darfur. The only footnote to this consensus is China, which, eager for access to Sudan's oil and armed with a veto at the U.N. Security Council, forced the United Nations to accept a precondition to action in August: that the government in Khartoum must consent to the deployment of any U.N. force.
The Sudanese government has no history of objecting to U.N. peacekeeping forces on its territory. It agreed as recently as January 2005 to the deployment of a 10,000-member U.N. peacekeeping force in southern Sudan to monitor implementation of a peace agreement with rebels there, and that force remains in Sudan. So what has led Khartoum to reject today what it was willing to accept just two years ago? According to Sudanese government spokesmen, it's the involvement of the ICC.
Sudan is not a party to the treaty establishing the ICC, so the only way the court could obtain jurisdiction over crimes in Darfur was to be granted such jurisdiction by the Security Council. The council took that step in March 2005.
The Bush administration supported bringing in the ICC, not least because the perpetrators of the Darfur genocide are so richly deserving of prosecution. More fundamentally, the administration went along because this was the strongest action that other members of the Security Council were prepared to take at the time. The political situation mirrored that surrounding the Security Council's decision to create a war crimes tribunal for the former Yugoslavia in 1993. In both cases, the United States was pressing for resolute steps to end genocide, but other countries, particularly in Europe, were unwilling to agree to steps that might entail significant military, economic or political costs. The idea of deploying eager prosecutors rather than effective peacekeepers emerged as a low-risk compromise.
But war crimes prosecutors didn't stop genocide in Yugoslavia, and they haven't stopped it in Darfur either. To the contrary, the example of the Balkans, where U.N. peacekeepers in Bosnia and Kosovo have tracked down and arrested war crimes indictees, appears to have hardened the opposition of Sudanese officials to a U.N. force. Quite predictably, those officials are saying they're not interested in a U.N. peacekeeping force in Darfur if, as in the Balkans, it would offer them a one-way trip in handcuffs to The Hague.
Those seeking to end the genocide have naturally been seeking new ways to pressure Khartoum. Realistic options for tightening economic sanctions are few. So, having failed to recognize that it was a mistake to call in the ICC, many critics of the regime have compounded the error by trying to ratchet up the threat of ICC prosecution. This, of course, reinforces the regime's impulse to say no. Indeed, it would be hard to devise a policy better calculated to perpetuate Sudan's refusal to accept a U.N. peacekeeping force in Darfur.
If the Sudanese government ever begins to seriously consider agreeing to a U.N. force in Darfur, the first thing it is likely to seek is guarantees against the arrest and prosecution of Sudanese officials by the ICC. But it is not clear that the Security Council would be able to grant the government those guarantees should the international community be prepared to consider such a bargain. In an effort to insulate the ICC from political pressure, the treaty establishing the court seeks to make it impossible for the Security Council to permanently end ICC proceedings once they have commenced.
Should efforts to deploy a U.N. force fail and the genocide continue, options for ending the bloodshed may narrow to some sort of coalition military action. Given China's opposition, such action almost certainly would have to be carried out without Security Council authorization and would be vastly inferior to the deployment of an effective U.N. peacekeeping force.
In the analogous cases of Bosnia and Kosovo, coalition military action was in large measure U.S. military action, and the same would be true in Darfur. No matter how noble our objectives, U.S. military action without U.N. authorization against another Arab government would prove deeply unpopular in many parts of the world, and America would pay a steep political price. If this is where we end up in Darfur -- or if the genocide continues unabated because peacekeepers cannot be deployed -- there will be three culprits to blame: the bloodthirsty regime in Khartoum, the oil-thirsty government in Beijing and the U.N. Security Council's shortsighted decision to bring in the ICC.
The writer, vice president of a Washington-based government affairs and consulting firm, was an assistant secretary of state from 2002 to 2006, with responsibility for arms control, nonproliferation and international security.