Monday, March 28, 2005

France, Darfur and the ICC

According to various sources, last Wednesday (March 23), the French Ambassador to the UN Jean-Marc de la Sablière put forward a draft Security Council Resolution that would have suspected perpetrators of (depending on the source) either war crimes or crimes against humanity in Darfur charged before the International Criminal Court (ICC). (In international law, war crimes and crimes against humanity are not the same thing, though they are typically treated as such in the media and in certain cases they may fade into one another.) Under article 12 of its statute, the ICC would in fact need a referral from the Security Council in order to exercise jurisdiction in cases related to Darfur, since Sudan is not itself a party to the statute. Thursday's New York Times (March 24) observes that the French action “presented Washington with the choice of validating a tribunal it strongly opposes or casting a politically awkward veto.”

It is interesting to note how France itself has avoided such awkwardness. For despite the appearance created by France’s recent shilling for the Court, France was – along with the United States – one of the major opponents of the ICC statute as it came to take shape at the 1998 Rome conference where it was essentially finalized.

The United States, incidentally, had in fact long supported the project of creating an International Criminal Court, but has objected to the details of the final draft of the statute that emerged from Rome. This was also true under the Clinton administration. It was indeed Bill Clinton's envoy, David Scheffer, who voted against the final draft of the statute at the Rome conference. Nonetheless - in what can only realistically be seen as a kind of gift to his European friends - Clinton had Scheffer sign the statute on behalf of the US on 31 December 2000, the last possible date for signatures, thus putting the incoming Bush administration in the indeed awkward position of having to "unsign" it in order to be able consistently to defend the American position.

As for France, the French delegation to the Rome conference only dropped its opposition once a “transitional” article had been added to the statute that gives state parties the right to “opt out” of the court’s jurisdiction for an initial period of seven years. France made use of this article in submitting its instrument of ratification in June 2000. Thus, as I have noted in my article on the ICC, “A Lawless Global Court”, “France at one and the same time ratified the statute of the court and declared that it did not recognize its jurisdiction over war crimes — except when alleged to have been committed by non-French citizens or on non-French territories.”

France did accept the jurisdiction of the Court for genocide and crimes against humanity: two categories of crime, as I pointed out in my article, under which its own military personnel would be far less likely to find themselves charged. Though, on the other hand, I wrote my article before French forces fired into a crowd of civilians in Abidjan last November. (For the complete coverage in Trans-Int of the so-called "Hotel Ivoire" incident, see the France and Ivory Coast file in the side-bar.)

According to a report in Friday’s Le Monde [link in French] and allegedly following a request from Condoleezza Rice, France agreed to postpone bringing its resolution for a vote until sometime this week.


If France does go ahead and bring the resolution for vote, there should be no doubt that this will be a matter of pure grandstanding, designed precisely to embarrass the United States and make it appear as somehow “soft” on war crimes – even though, in fact, the US government has taken a more severe line on the events in Darfur than both the leading European governments and the UN bureaucracy. There cannot be any serious prospect of the US not using its veto.

In conversation with the Times, de la Sablière

noted that a paragraph of the resolution specifically exempts from investigation or prosecution citizens of countries like the United States that are not ratifiers of the court treaty.

"We think that this paragraph meets American concerns," he said. "So we hope they'll vote for the resolution."

If Mr. de la Sablière sincerely believes that such a paragraph would “meet American concerns”, then he has not understood that the US and other opponents of the court – such as Japan and India, for instance – have principled reasons for rejecting it.

Although its name gives the impression that it is an “international institution” in the same sense as, say, the UN (of which all the world’s states part apart from the Vatican are members), in fact the ICC represents the international equivalent of a “private” court. It is “owned”, so to say, by just those countries that are its members. Not only does the ICC statute come nowhere near to meeting the due process standards of American law, but its mode of financing is such that its partiality is practically guaranteed. I again permit myself to quote from my article on the court:

It is a self-evident principle that the independence and hence impartiality of a court is only as sure as the independence of its financing. At the national or local level, adequate financing out of universal tax revenues is thus a sine qua non for an independent judiciary. None of us would put faith in the impartiality of a local or national court if it depended upon the largesse of private individuals or corporations, who, by definition, might have an interest in the outcome of particular proceedings. The only analogous safeguard available for an international court is financing from assessed mandatory contributions of state members. The International Court of Justice (ICJ) is, for example, financed in this manner out of the general U.N. budget. Whereas all state members of the ICC are required to make assessed contributions to its budget, article 116 of its statute also provides for voluntary contributions “from Governments, international organizations, individuals, corporations and other entities.” Thus, the ICC’s very statute openly invites contributions from a whole range of “entities,” any of whom could have an interest in the outcome of proceedings and some of whom, notably “Governments [sic — states are presumably what is meant]” might even have been parties to the hostilities in which the alleged crimes over which the court claims jurisdiction are supposed to have occurred. Apparently having been made aware that such a provision could provoke controversy, in September 2002 the ICC’s Assembly of State Parties passed a remarkable resolution “requesting” that all such “entities” making voluntary contributions declare that their contributions “are not intended to affect the independence of the Court.” Much in the spirit of the statute itself, verbal assurances were here offered as the equivalent of substantive protections.

It is presumably such provisions – reinforced by the expectation that EU states should act in concert – that have reassured the court’s wealthier European members that their own officials and military personnel will not become targets of the court and - not to put too fine a point on it - that it will strictly be used to prosecute their enemies.

Speaking of this, by the way, the November actions of French troops during the so-called “Hotel Ivoire incident” in Abidjan, to which I alluded above, could easily be construed as falling under the Rome Statute’s definition of “crimes against humanity”. Moreover, even if it should be conceded that they fulfilled some legitimate military objective – French officials, while admitting that civilians were killed, have claimed that the crowd contained snipers – they could still fall under the Statute’s definition of “war crimes” and, notably, Article 8.2.b.iv of the Statute, which refers to:
Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.

In January, the Foreign Affairs Committee of the French National Assembly [official report, link in French] quietly rejected a motion to set up a commission of inquiry into the matter.

For much more on the reasons why the American administration need by no means feel "awkward" about opposing the International Criminal Court, see my "A Lawless Global Court" from Policy Review. And on opposition to the ICC from African quarters, see the highly interesting article "Africa to world: We can handle war justice ourselves" from the Christian Science Monitor. (Thanks K.A.!)