A Grave Error
Concerning the French-sponsored UN Security Council Resolution to refer the cases of accused perpetrators of war crimes in Darfur to the ICC, I wrote on Monday that “There cannot be any serious prospect of the US not using its veto.” I was wrong. In a stunning turn of events, the US yesterday abstained from voting on the Resolution, thus permitting it to pass. In return for its abstention, the US received concessions on the wording of the resolution. Most notably, Article 6 of the resolution excludes from the Court’s jurisdiction officials, personnel and nationals of states who are not members of the Court and who might participate in UN (or African Union) operations in Sudan.
(The full text of the resolution is available here. A typically hysterical report from Claire Tréan in today's Le Monde [link in French] suggests that the phrasing employed in Article 6 might even have some retroactive effect vis-à-vis “former officials and personnel” in general – thus removing forever from the clutches of the Court the likes of the dreaded Henry Kissinger. In fact, the language in Article 6 of the resolution clearly refers just to "current or former officials or personnel" involved in or having been involved in operations in Sudan. It has no broader application - and, in any case, Henry Kissinger has already escaped the clutches of the ICC, since as Claire Tréan, Le Monde's would-be specialist on internationa law, should know, the Court has no jurisdiction retroactive to its creation.)
The passage of the resolution with the cited concessions to the US is the worst possible outcome for the United States. The concessions obtained will in fact reinforce the charge of American “unilateralism”, since they create the impression – or will be used to create the impression – that the US does not want to play by the same rules as the rest of the “international community”. But the ICC does not represent the “international community” – 94 states, representing the overwhelming majority of the population of the planet, are not members of the ICC – and the rules which are laid down in its statute are bad and dangerous: not just for the US, but for the international system as such. Indeed, as I explain in my piece on the ICC in Policy Review, they represent a distinct threat to international peace. (The original title of my piece was “The ICC as a Threat to International Peace”. I would discourage conservatives from referring to the ICC as a “Global Court” or “World Court”. It is not that. As I explained in my previous post on the matter, the ICC is in fact the international equivalent of a “private” court. It should not even be referred to as “the” International Criminal Court. It is quite simply an International Criminal Court.)
Members of the Bush Administration know very well the dangers represented by the Court. John Bolton published a piece on the matter – titled precisely “Courting Danger” – in the Winter 1998-99 issue of The National Interest. In the article from Le Monde, an unnamed French official is cited saying that France and its allies in the Council were determined to bring the resolution to a vote even if the US was going to veto it, since this would “force the United States to explain itself”. Exactly. The US administration ought to have risen to the challenge and explained itself.
Other options, by the way, were available for handling the matter of war crimes in Darfur: notably, a proposal made by the President of the African Union, and favored by the Algerian UN delegation, which would have created an ad hoc international tribunal under the aegis of the African Union. It is said that for the US to have voted against the French proposal would have been politically "awkward". It would have been no less "awkward" for France - indeed, in light of France's colonial history, it ought to have been much more so - to have voted against the solution proposed by the African Union.