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PAN Discussion Group Wednesday May 31st  2006
Subject: 

First a quick FAQ on the International Criminal Court

http://www.icc-cpi.int/about/ataglance/faq.html

1. Why is an International Criminal Court necessary?

This past century has seen some of the worst atrocities in the history of humanity. In too many cases, these crimes have been committed with impunity, which has only encouraged others to flout the laws of humanity. States representative of the international community met in order to negotiate and agree upon the establishment of a treaty based International Criminal Court to help end impunity and the gross violations of international humanitarian law.

2. What are the key features of the ICC?

Based in the Hague, The Nederlands, the International Criminal Court is the first ever permanent international institution, with jurisdiction to prosecute individuals responsible for the most serious crimes of international concern : genocide, crimes against humanity and war crimes. The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to it.

The jurisdiction of the ICC will be complementary to national courts, which means that the Court will only act when countries themselves are unable or unwilling to investigate or prosecute.

The jurisdiction and functioning of the court is governed by the provisions of the Rome Statute. The ICC also has strong protections for due process, procedural safeguards to protect it from abuse, and furthers victims' rights and gender justice under international law.

3. When did the Rome Statute of the International Criminal Court enter into force?

The ICC Statute entered into force on 1 July 2002, 60 days after the 60th ratification needed to create the Court was received on April 11th at a special event at the United Nations, when 10 countries simultaneously deposited their instruments of ratification.

4. Doesn't "complementarity" mean that the International Criminal Court can never prosecute if a country holds its own trial?

The International Criminal Court will complement national courts so that they retain jurisdiction to try genocide, crimes against humanity and war crimes.

If a case is being considered by a country with jurisdiction over it, then the ICC cannot act unless the country is unwilling or unable genuinely to investigate or prosecute.

A country may be determined to be "unwilling" if it is clearly shielding someone from responsibility for ICC crimes. A country may be "unable" when its legal system has collapsed.

5. Who can initiate proceedings?

Proceedings before the ICC may be initiated by a State Party, the Prosecutor or the United Nations Security Council.

The jurisdiction of the ICC is based on "complementarity", which allows national courts the first opportunity to investigate or prosecute.

6. Can the ICC be used to try crimes committed before the Rome Treaty entered into force?

The ICC will not have retroactive jurisdiction and therefore will not apply to crimes committed before 1 July 2002, when the Statute entered into force.

7. Why is the Court not exercising its jurisdiction over the crime of aggression?

The Rome Statute included the crime of aggression within the jurisdiction of the Court. However, the States Parties must adopt an agreement setting up a definition of aggression and the conditions under which the Court could exercise its jurisdiction. A review conference will be held in 2009, seven years from the date that the Rome Statute entered into force, during which the matter will be discussed.

8. Can the ICC deal with terrorist acts within its existing jurisdiction?

The ICC will have jurisdiction over genocide, crimes against humanity and war crimes. The ICC may be able to prosecute terrorist acts only if they fall within these categories.

9. How is the ICC different from the ad hoc Tribunals for Rwanda and the former Yugoslavia?

The International Criminal Court is the product of a multilateral treaty, whereas the Tribunals for the former Yugoslavia and Rwanda were created by the United Nations Security Council. These tribunals were created in response to specific situations and will be in existence for a limited time period. The ICC is a permanent international criminal tribunal and will avoid the delays and costs of creating ad hoc tribunals.

10. How is the ICC different from the International Court of Justice?

The International Court of Justice (ICJ) does not have criminal jurisdiction to prosecute individuals. It is a civil tribunal that deals primarily with disputes between States. The ICJ is the principle judicial organ of the United Nations, whereas the ICC is independent of the UN.

11. Where is the International Criminal Court located?

The ICC has established its headquarters in The Hague, The Netherlands.

12. How many people work for the ICC?

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As at October 2004, 116 women and 134 men work for the ICC, coming from 60 states.

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Next an article that explores the ICC in the context of Darfur

http://www.learntoquestion.com/resources/database/archives/000909.html

Elizabeth Rubin, "If Not Peace, Then Justice," New York Times Magazine

April 2, 2006

If Not Peace, Then Justice

I. A Day in Court for the Criminals of Darfur?

A thick afternoon fog enveloped the trees and streetlights of The Hague, a placid city built along canals, a city of art galleries, clothing boutiques, Vermeers and Eschers. It is not for these old European boulevards, however, that The Hague figures in the minds of men and women in places as far apart as Uganda, Sarajevo and now Sudan. Rather, it symbolizes the possibility of some justice in the world, when the state has collapsed or turned into an instrument of terror. The Hague has long been home to the International Court of Justice (or World Court), a legal arm of the United Nations, which adjudicates disputes between states. During the Balkan wars, a tribunal was set up here for Yugoslavia; it has since brought cases against 161 individuals. It was trying Slobodan Milosevic - the first genocide case brought against a former head of state - until his unexpected death last month. And now the International Criminal Court has begun its investigations into the mass murders and crimes against humanity that have been committed, and are still taking place, in the Darfur region of Sudan.

The Hague has become a symbol of both the promise of international law and its stunning shortcomings. We have reached a point in world affairs at which we learn about genocide even as it unfolds, and yet it is practically a given that the international community will not use military intervention to stop it. Militias called janjaweed, recruited from Arab tribes in Darfur and Chad and supported by the Sudanese government, continue to attack, rape and kill villagers from African tribes - more than 200,000 people have been killed in Darfur, and two million have fled their homes. For more than two years, politicians and activists have been shouting to the world that a genocide is unfolding in Darfur, calling it a slow-motion Rwanda in the hope that the shock of remembering the nearly one million people slaughtered in that African country in 1994 would prompt action. Coalitions of students, religious leaders and human rights groups have lobbied in Washington, have set up SaveDarfur.org and have made green rubber bracelets, now worn all over the United States, that quote George Bush recalling Rwanda and promising, "Not on my watch." Yet the killing rolls on, and no one intervenes to bring it to an end, as if the genocide in Darfur were already history.

Last year the United Nations Security Council referred the Darfur file to the International Criminal Court. And now the horrors of Darfur have become the preoccupation of an extraordinary international team of investigators in a plain and quiet Dutch town. They have no army, but they want to ensure that out of this history - this slow-motion genocide - they can wrest some justice.

Luis Moreno-Ocampo is the chief prosecutor of the International Criminal Court. A veteran Argentine lawyer in his 50's, he has a short, graying beard and Groucho Marx eyebrows that are almost always in motion - excited, alarmed, disappointed. Moreno-Ocampo knows how difficult his position is. "I'm a stateless prosecutor - I have 100 states under my jurisdiction and zero policemen," he said when I visited him in The Hague in January. But he does not see his court as a token body. "No. No! Wrong!" he said, swinging his arms one Saturday afternoon as we strolled by The Hague's medieval prison. He recounted how he had explained the court to his 13-year-old son: "My son is studying the Spanish conquerors in Latin America. Yesterday he says to me, 'They killed 90 percent of the Indians, so today you'd put them in jail?' I said: 'Yes. Exactly. What happened to the native populations in the U.S. and Latin America could not happen today with the I.C.C. Absolutely. Absolutely. We are evolving. Humanity is not just sitting. There is a new concept. The history of human beings is war and violence; now we're saying this institution is here to prevent crimes against humanity."'

The International Criminal Court was created by the Rome Statute in 1998 and began work in 2003 with two goals - to prevent crimes against humanity, genocide and war crimes; and to prosecute them. Of the two, prevention is what fires Moreno-Ocampo's ambition; it is what excites his imagination and intellect and fuels his 18-hour workdays, far away from his family, his horses and his farm in Argentina. It's not that he thinks the court can protect the villagers now being killed and maimed and raped in Darfur; his investigation into war crimes there will take years. What he is convinced of is that the prospect of prosecuting war criminals in Darfur and elsewhere will deter others from committing horrific crimes. Genocides "are planned," he told me. "They are not passion crimes. These people think in cost." The I.C.C. is intended to raise the cost. Moreno-Ocampo holds up Carlos Castaño, one of Colombia's top paramilitary commanders, as an example of the court's potential reach. After Colombia ratified the I.C.C. treaty, Castaño laid down his weapons because, according to his brother, he realized that he might become vulnerable to I.C.C. prosecution.

Colombia, however, is not Sudan, and Castaño was not carrying out a genocide. Does Moreno-Ocampo have a chance of bringing the perpetrators of the crimes in Darfur to justice?

II. The Dreams of Gustave Moynier and Luis Moreno-Ocampo

In 1989, as Soviet rule crumbled, a tiny window of historical possibility opened. For a moment, many people imagined a new world, with relations between nations rooted in human rights and international norms. It was something of a utopian vision, and the 90's - with massacres in Rwanda and Bosnia, Chechnya, Liberia, Congo and Sierra Leone - quickly swept the world back into bloodshed and genocide. Despite all the killing, an international movement was pushing the principle that government officials must be held accountable before the law. An early triumph of the movement was the successful prosecution in the mid-80's of Argentine generals responsible for the "dirty war" that led to as many as 30,000 Argentines being "disappeared." This was the first such trial - against top generals and leaders - since Nuremberg. Luis Moreno-Ocampo was the assistant prosecutor and became a household name across Argentina. The Argentine trials set a precedent for later tribunals like those for crimes committed in the former Yugoslavia, Rwanda and Sierra Leone.

The dream of an I.C.C. can be dated as far back as 1872 to a Swiss man named Gustave Moynier, who helped found the Red Cross. He saw many atrocities committed during the Franco-Prussian War of 1870-71 and realized that the 1864 Geneva Convention, on the treatment of wounded soldiers, was just paper without a court that could try violators. Nearly 130 years later, 120 countries voted to endorse the Rome Statute and began what could prove to be a small revolution in the history of nations. World leaders dared expose themselves to international law. No more immunity: they agreed to be held accountable for war crimes, crimes against humanity and genocide. Investigators and prosecutors would detail crimes and prosecute the criminals. Prisons would hold those convicted. Here was an idealistic vision designed by liberal pragmatists.

In the end, the delegations of seven states involved in the negotiations voted against the resulting treaty. Those states included Iraq, Israel, Libya, China - and the United States. But in 2000, just hours before the deadline, President Bill Clinton signed the treaty, a necessary step before sending it on to the Senate for ratification. A few weeks later, advisers to his successor, President Bush, let it be known that his administration would not respect that signature - that it regarded most international treaties as tools for the weak. In May 2002, Under Secretary of State John R. Bolton sent a letter to Kofi Annan, secretary general of the United Nations, announcing that the United States didn't consider itself bound by the Rome Statute. In one public debate, Bolton, who later became the American ambassador to the U.N., had argued: "The United States should pursue a policy of 'three nos': the United States should provide no financial support for the court, directly or indirectly; the administration should not collaborate further in efforts to make the court operational; and the United States should not negotiate further with governments to 'improve' the I.C.C. This policy will maximize the chances that the court will not come into existence." Since the court was a fait accompli, President Bush signed into law the American Service-Members' Protection Act, which requires American forces to liberate any American in I.C.C. custody. It is popularly known as The Hague Invasion Act.

Given that the reputation of the United States on human rights is today at one of its lowest points - Abu Ghraib, Bagram, Guantánamo - Moreno-Ocampo gamely regards Bush as an inadvertent boon to the court. Bush builds Moreno-Ocampo's legitimacy by being against the court. For Moreno-Ocampo's work is political as well as legal, and his approach is intensely pragmatic. As idealistic as he may be in his global post, his career is rooted in the muck of reality. He was just 32 when he prosecuted the Argentine generals. He went on to prosecute Argentina's military regime responsible for the Falklands war and other officers for murder, torture and kidnapping. He endured assassination threats while taking on corrupt officials, cabinet members and judges; preventing and fighting corruption became his unusual specialty when he went into private practice in 1992.

The challenge in Darfur is, however, greater by far than anything in Moreno-Ocampo's career. It was in March of last year that the Security Council referred the case of crimes against humanity in Darfur to the I.C.C. Soon, television footage was shown around the world of a truck delivering boxes of documents, compiled by United Nations investigators, about the crimes committed in Darfur. In New York, Kofi Annan handed Moreno-Ocampo an envelope containing the names of 51 Sudanese people recommended for indictment by the commission. News of the list's existence unnerved officials in Khartoum, Sudan's capital. Moreno-Ocampo took the envelope, flew back to The Hague and opened it among a few associates. He then locked the names away, later saying that he would compile his own list.

Moreno-Ocampo's Darfur file is a first in international justice. His investigators must work against the will of the Sudanese government. They cannot gather any forensic evidence from schools where collective rapes occurred. They cannot gather samples from wells that were poisoned. They cannot even gather shrapnel from bombs dropped on civilians by the government. The collecting of written material, however, did not stop with the U.N. commission. Sudanese dissidents and activists have been feeding the I.C.C. investigators letters and documents. A U.N. team recently returned from investigating key Sudanese officials (and singled out 17 for international sanctions). And Moreno-Ocampo is interviewing victims by every means possible, putting together the narratives of selected crimes and connecting them to command decisions in government. Slowly, too slowly for some, out of the murderous morass a case is being built.

III. What the I.C.C., and Sudan, Can Do

The government of Sudan, led by President Omar Hassan al-Bashir, contends that the I.C.C. investigation is unnecessary. After all, Sudanese courts are conducting their own investigations and prosecutions for whatever crimes may have occurred in Darfur. Immediately after Moreno-Ocampo declared in June 2005 that the people he was likely to investigate would not face justice in Sudanese courts, Bashir's ministry of justice announced the creation of the Darfur Special Criminal Court, a three-judge traveling court.

There are several ways in which a case may be brought before the I.C.C. One is by invitation of a state; this is the case in Uganda, for example, where the government asked the I.C.C. to investigate crimes committed by the Lord's Resistance Army, a murderous cult group composed of a few leaders and thousands of kidnapped children that has been terrorizing northern Uganda for nearly 20 years. A second option is for an I.C.C. prosecutor to initiate an investigation. This is the method that has made John Bolton and others apoplectic about the court and led President Bush in the 2004 presidential campaign to refer to an "unaccountable prosecutor." (In fact, the prosecutor is accountable to an international panel of judges.) The third possibility is referral by the Security Council. In every instance, a case will be inadmissible to the I.C.C. if a state is carrying out its own investigation or prosecution - unless the I.C.C. determines that the state's prosecution is seriously inadequate.

That determination is made by the I.C.C. prosecutor and the court's judges, who are nominated by the 100 states that are full parties to the Rome Statute. In short, the court is empowered to assert jurisdiction in states like Sudan that are not themselves parties to the treaty. This is the point at which the aspirations of international law meet the resistance of sovereignty and political power. For now, Sudan has set up courts with an eye toward demonstrating that the Darfur cases are inadmissible to the International Criminal Court because they're being handled perfectly well in Sudan.

The airport in Nyala, the capital of South Darfur, welcomes you with carefully tended flowers and a soft breeze that is a pleasant change from the relentless heat of Khartoum. A bustling market town on the edge of the desert, Nyala has an air of normalcy about it. Children in blue-and-white uniforms walk the dusty roads to school in the morning. Lawyers wait outside the courts to bring their cases. Women in technicolor wraps make fresh tea and coffee on little stools in the market. Arab nomads park their camels in the livestock market at the edge of a neighborhood locally known as Falluja because of the violence there.

The governor has declared it a crime to call the neighborhood Falluja, one of the many strange rules that remind you that you are in a police state. My translator during my trip to Darfur this past winter was a Fur, the Fur being one of the main African tribes of Darfur, and to protect himself he often had to lie about his tribe when we went to neighborhoods like Falluja. On the edge of town, African Union troops - they have been in Darfur since July 2004 to monitor a cease-fire and now number a mere 7,000 - camp in tents provided by American companies. Just outside town, the notorious Kalma camp spreads across a stark plain alongside a dry riverbed. Some 90,000 people have come to live at the camp after fleeing their villages. The camp is nearly two years old and has sprawled almost five miles as families pack themselves in under thatch roofs and flapping walls made of canvas USAid food sacks.

In a quiet corner of Nyala, in a modest stone house, is the Amal Center, one of a handful of local institutions that offer some hope to Darfurians. The Amal Center is financed mainly by international organizations. Volunteer doctors treat victims of attacks, and a team of local Arab and African lawyers donate their time to file cases of murder, looting and rape stemming from the crisis. The center was founded in Khartoum in 2000 to help victims of torture in Sudanese prisons and later expanded to Darfur.

Among the lawyers at Amal is Muhammad Ali, a local Arab whose clients are mostly black African victims of janjaweed violence, and Thuriya Haroon Daldon, who is teasingly nicknamed Mrs. I.C.C. by local judges and, unusually for a woman here, drives herself around in a van. Thuriya Haroon's first case with Amal was in 2001, representing a group of men who said they had been tortured by national-security officers. "I submitted the names of the torturers to the attorney general, but until now there's no permission even to pursue the case, and no answer," she said, and laughed. A frank woman with a friendly but firm aspect, Thuriya Haroon uses laughter to fend off the realities of death and cruelty that now fill her workday. "Instead, we face harassment," she said. "They follow us, watch us. And until now the victims say to me: 'What do you do? We give our stories, and those who tortured us are on the streets.' Sometimes I'm ashamed. I've done nothing." She has handled hundreds of rape cases, for example, and until now: "No one has been convicted of rape in all of Darfur. We've had only two cases of immoral behavior. They were sentenced to six months."

Since President Bashir and the National Islamic Front (now known as the National Congress Party) took power in a coup in 1989, there have been dozens of rebellions all over Sudan. The deadliest predated the regime: a civil war between the north, where the Islamist regime was based, and the mostly Christian or animist south. Unlike in the south, however, in Darfur the African and Arab tribes are all Muslim. In Darfur, as elsewhere in Sudan, the rebels are fighting their people's economic and political marginalization.

The current Darfur conflict began raging after rebels ambushed the Sudanese Air Force at one of its bases in North Darfur early in 2003. It was a humiliating defeat for Bashir and his government's security apparatus. The government responded - as it had previously in the Nuba Mountains and the southern oil fields - by recruiting local militias to wage a counterinsurgency campaign, thus pitting tribes against one another. The name janjaweed means bandits or ruffians; it combines "devil" (jinn) with "horse" (jawad) and conjures a dark terror for Darfurians. The janjaweed were plucked from the mostly nomadic camel- or cattle-breeding Arab tribes of Darfur and neighboring Chad. Uneducated, destitute and landless, they are motivated mainly by promises made by Sudanese government officials of land and loot. Today the government uses them as a means of deniability: the militias are uncontrollable, the government says, and are merely carrying on an ancient tribal conflict or a centuries-old fight over resources between seminomadic Arabs and African farmers. Yet when the government wants to control them, it does, and many of the janjaweed have simply been incorporated into what are known as the popular defense forces.

Since August 2004, the Amal Center has compiled information on more than 72,000 cases. The documents are stored in boxes and a simple gray metal cabinet. Most are in folders sorted by the name of the targeted village. Consider the case of the town of Marla. In April of last year, after the Darfur file was referred by the Security Council to the I.C.C., the governor of South Darfur, Atta al-Mannan, announced that anyone from Marla who had a complaint could open a court case. The people of Marla took the governor at his word. "I brought all the cases of torture to the governor," the omda, or community leader, of Marla, Abdul Karim, told me one hot, windy afternoon at the Kalma refugee camp. "The one tied by plastic rope who was paralyzed, the ones who were hung and have wounds on their necks, the ones who were burned with melting plastic. Sixteen cases. I told them to stand in front of the governor to tell their story and to show their wounds. One man couldn't even hold a cup of water anymore. The governor said, 'I didn't know such things happened."' The governor said he would form a committee to investigate who committed the crimes. A prosecutor from Khartoum came and did the investigation, submitted his report and returned to Khartoum. The governor proudly showed me the bound report, along with several other investigative reports that he had ordered and that sat in a glass display case behind his desk.

Abdul Karim said that when investigators found that all the Marla cases were against government or janjaweed or popular defense forces, they dropped the investigation. Several men from Marla had filed cases against specific young men who belonged to the popular defense forces. The men from Marla had a court hearing and brought witnesses. But on the way out through the courtyard that day, the plaintiffs were arrested by national security and then disappeared for months. The men accused of the initial crimes were released. The tribal leader who the Marla men and United Nations officials say assisted in commanding the attack lives in a comfortable house in Nyala and hangs out at police headquarters and the prosecutor's office.

Justice in Nyala begins and ends with the prosecutor of South Darfur, Mauwia Abdullah Ahmed, who is from one of Darfur's Arab tribes. He decides which, if any, cases will go to the Darfur Special Criminal Court. I met him one morning in his office in a long one-story building just across a fence from Nyala's courthouse. He wore a blazer and tie and seemed bored when I asked why he hadn't transferred any of the serious cases - like those brought by the survivors from Marla - to the special court. He said it was too difficult to arrest the accused. He complained that the victims never identified their attackers, that witnesses never showed up.

I then asked him about the case of Hamada, a village attacked by janjaweed in January 2005. Muhammad Ali and others from the Amal Center filed the case on behalf of the villagers of Hamada - 93 people had been slaughtered, livestock and possessions were looted and as the mayhem went on at least 19 women were raped.

The Arab tribal leader Nazir al-Tijani, who commands most of the janjaweed in that area and is said to be under the control of the governor, has admitted that the attacks occurred and that he directed them. He said it was in retaliation for cattle raids. "He gave a big speech about his innocence, but he has not read the Geneva Conventions very well," one international official told me, quoting Tijani as having said, "Just because I ordered and planned the attacks doesn't mean that I was present during the attacks!"

The prosecutor told me that no individuals had been named in relation to Hamada. I asked him about Tijani. "That's a political case," he said. "People talk to the media, but no one came and gave us these details." I reminded the prosecutor that the village leader of Hamada filed the case through the Amal Center, and the prosecutor changed tactics. "We made an order of arrest, but up to now they're not arrested," he said. "The police don't know these people." But everyone knew Tijani. He came into town several times a week, or you could, as I once did, drive the two hours to his farm. "Murder cases are so common here," the prosecutor said, leaning back in his chair and scratching himself. "Hamada is no different. It's not a war crime. It's a murder case."

IV. A Visit to Sudan's Own Court

The Sudanese government's leading initiative to pre-empt the I.C.C. is its Darfur Special Criminal Court. By late last fall the special court had heard just six cases. One was a rape case that was dropped. (Thuriya Haroon, of the Amal Center, tried to obtain a closed-session hearing for the under-age girl, but the judges refused, and the girl clammed up.) Another case involved the looting of a truck and the shooting of a USAid employee; the charge was reduced to weapons possession. One of the harsher sentences went to a man convicted of stealing 80 sheep. It's not that no one has been connected by Sudanese courts to the genocide. They have convicted several men who did not want to take part in it: Darfurian Air Force pilots who refused to fly bombing missions over their homeland. They are serving 10 to 20 years in Kober prison in Khartoum.

One morning I visited the special court in El Fasher, the capital of North Darfur. I asked the president of the court, Mahmoud Abkam, why, with all the heinous crimes committed in Darfur over the past two years, so few cases of any seriousness had come before his court. He was an elderly man and had been retired when this job came up. He said, "We've found nothing of importance except those cases we heard." Why? "Because no information went to the prosecutor." What about Marla, Hamada, Deleig and all the other cases? He reiterated that no cases had come to the court's attention and suggested that this was because the victims preferred to talk to foreigners like me.

"You can serve their case better than the authorities," he said. "Here you can do nothing." He invited frustrated complainants to come to his court and tell him that the attorney general's office is ignoring their cases, but, he added, "They won't do it."

I said that many of the people who had told me their stories had no idea of his court's existence. He said, with a distinct suddenness: "To be frank, when we came here we thought there would be cases ready for trial. And we heard of mass rape, mass murder. We had the authority to see everything in the attorney general's office. But nothing on paper was shown to us." How did he explain that? "Perhaps the attorney general could not proceed due to circumstances beyond his control," he said. "Let us be optimistic and say that."

What if we were to be pessimistic?

"Higher authorities are not interested in these cases to be presented to the court," he said, "or for them to even come to the knowledge of the court." Another judge told me that, given the shortcomings of the court, the government of Sudan, far from preventing the I.C.C. from taking over justice in Darfur, is all but ensuring that the I.C.C. prosecutor will come to Sudan.

V. An I.C.C. Kind of Crime

A few days before I arrived in Nyala, the janjaweed and Arabs in military uniform attacked the Fur village of Tama. In the courtyard of a small house in Nyala, I met two women who had fled Tama and were wrapped in white shrouds, legs stretched out on the earth, eyes fixed down. One of them, Zahara Muhammad Abdullah, drew an orange cloth over the face of a young girl who was hiding in her lap. The child was petrified. A few days earlier, the two women told me, they rose before the sun for prayers in the mosque with their husband, the imam, when out of the quiet came the sounds of hoofbeats and gunfire and shouts, and janjaweed, some in uniform, burst through the mosque doors asking for the imam by name. The women watched as their husband said, "Yes, this is me," and the armed men said, "You, imam, are the one asking God to give victory to the Tora Bora" - a nickname for antigovernment rebels - "so today is the last day for you." The imam prayed and recited a sura from the Koran, Zahara said, "and then suddenly they shot him." Then the men fired their guns randomly around the mosque. The bullets hit the imam's brother, his brother's wife, his brother's two sons and his daughter's son. They all died. Another armed man appeared and asked the other gunmen, "Did you kill Fakir Tahir" - the imam. "We did," they said. He wanted to make sure and pulled off the cloth covering the dead imam's face.

The imam's two wives and Howa, the 5-year-old girl, were kept inside the mosque and beaten periodically throughout the day while some 300 janjaweed continued to kill and loot. Meanwhile, the janjaweed women known as Hakama, a kind of Greek chorus who sing and encourage their warrior men during raids on villages, broke into song when they saw the dead in the mosque: The blood of the blacks runs like water, we take their goods and we chase them from our area and our cattle will be in their land. The power of al-Bashir belongs to the Arabs, and we will kill you until the end, you blacks, we have killed your God. It's a nonsensical ending: one thing that distinguishes the war in Darfur is that all the tribes are Muslim, and their God is the same.

The janjaweed killed 42 people that day, most of them running out of their homes or through fields of sorghum, hoping to escape. They told the imam's wives, "Go now to your father."

"We asked them, 'Who is our father?' and they said, 'The foreigners in Kalma camp."'

VI. The Perpetrators' Point of View

A few days later, I drove to Tama with African Union officers and troops. Their mandate is a cruel one in that they are nearly powerless; they must monitor the cease-fire, and that's it, no peacekeeping. Which means that many of these men - Rwandans, Gambians, South Africans, Kenyans, Nigerians - have spent the last year picking up and burying hundreds of dead bodies, and even watching as janjaweed burn and shoot. And they can do nothing.

In Tama the fires hadn't yet gone out. Flames shot out of the freshly harvested sorghum and sesame. Ceramic storage vats of food were smoldering. Homes were ransacked. Empty toothpaste boxes, notebooks, onions and okra spilled across the floors. A dog lay dead outside the smashed basins of the midwife's house. Inside the brick mosque the floor was clean but for a bloodied turban, a bloodied djellaba, a few bullet casings and two aluminum boxes holding Korans. "This is the Islam of Sudan," said a young Fur man, a Muslim. A sheik from the village showed us the graves outside the mosque where they buried 10 men and a woman. A week had passed since the janjaweed first attacked, and still they were burning the place to ensure that the villagers wouldn't come back. The governor of South Darfur, Atta al-Mannan, explained Tama to me this way: "I warned the A.U. that this is the seasonal trip south of the nomads and there may be an accident." But according to a military-intelligence officer, who spoke on condition of anonymity because he feared he would be killed, the Sudanese military knew the janjaweed were going to attack Tama. The janjaweed, he said, are considered legal and are mostly part of Border Intelligence Guard units. "They picked up boxes of ammunition at 2 p.m. the day before," he said. "So we knew some attack was coming. That is the usual routine."

Sudan's rulers seem to contemplate the murderous violence that sustains their power with complete serenity. One evening in Khartoum I visited the former governor of South Darfur, Lieut. Gen. Adam Hamid Musa. We sat in his garden during Ramadan, accompanied by a professor friend of his. Hamid Musa lived in a residential area cordoned off for favored military officers. He was removed as governor in 2004 and now heads the Darfur Peace and Development Forum, which is financed by Sudan's ruling party. He suggested that talk of rapes and racial cleansing in Darfur was simple propaganda. "Do you think a governor will go to kill his own people?" he asked.

Even before he was made governor in 2003, Musa was part of a group of Arab ideologues who were in Darfur recruiting Arab nomads into the militia now known as the janjaweed. In the garden that night, he noted that the allegations of rape and slaughter all came from the tribes of victims.

"And they all lied?" I asked.

"Yes," he said. "A single case of raping hasn't been proved. The women there don't even know what the word means." He chuckled happily and popped a toffee into his mouth, as did his professor friend.

VII. Moreno-Ocampo Fights on Many Fronts

For Moreno-Ocampo, work- ing on the Darfur file is a never-ending tale of bureaucracy and doublespeak. Interviews, access and permits are given to I.C.C. investigators, then revoked, then rethought. Slow comes with the job, and in some ways this is a throwback to Moreno-Ocampo's early days against a similar regime. In prosecuting the perpetrators of the dirty war, 20 years ago, Moreno-Ocampo and his team could not rely on evidence from intelligence or police. They had no graves or remains - the desaparecidos were mostly thrown into the sea. What they had were 30,000 reported cases of desaparecidos collected by a truth commission. They decided to focus on 700 cases. They based their evidence on the testimony of survivors, many of whom were tortured alongside those who disappeared. The prosecution proved that the generals had command responsibility for the detention centers and the military pilots who had dumped the bodies into the sea. This is exactly the strategy Moreno-Ocampo plans to use in Darfur.

The Argentine trials gave Moreno-Ocampo a deeper understanding of the meaning of the law for society. Argentina's new president at the time, Raúl Alfonsín, won the 1983 elections with a promise to prosecute the guerrillas and the junta. "There was a social demand for law, but we the prosecutors were just the strawberry - the politicians were the cake," Moreno-Ocampo told me. "Trials are an expression of society. The victims finally received respect, for the first time in my country. Before the trials, if you were a victim you were under suspicion." Even his mother came around. She attended the same church as Gen. Jorge Rafael Videla, the president and leader of the junta, and was furious with her son for prosecuting him and betraying the family - after all, her father was a general. "She changed her thinking through the media, watching the trials. She said, 'I still love Videla, but he has to be in jail."'

The trials were the most potent symbols of the fundamental changes sweeping through Argentina. One disappointment with the Yugoslav tribunals, according to Moreno-Ocampo, is that people were hoping "the trials were the cake." But the trials didn't change the country. "The prosecutor cannot change job opportunities or create consensus in society," he said. "You need social movements."

But Sudan is not Argentina or even Yugoslavia. The regime is still in control, and its officials are masters at manipulating the international community. As one Sudanese foreign-ministry ambassador told me, "We just have to get one step ahead of the game so we can outmaneuver the I.C.C. when they finally request to send investigators." Referring to the Darfur Special Criminal Court, he said, "We make national trials, show no impunity" - that is, that the guilty are being punished - "and ruin the I.C.C." You have to look long and hard to find any political figure of significance in Sudan who is actively supporting the I.C.C. - while there are plenty who will draw a crowd by fulminating against the court as one more instance of foreign meddling.

Given the lack of domestic support for prosecutions in Sudan, foreign support is crucial. The European Union has been the I.C.C.'s most loyal backer but has shown some wariness in the Sudan case, not least because of justifiable worries about appearing colonialist. (There were huge anti-U.N. demonstrations in Khartoum last month, and Sudanese politicians played the colonialism card very heavily.) China and France, which are permanent members of the Security Council, have interests in Sudanese oil, and though they referred the Darfur file to the I.C.C., it is reasonable to question how deep their commitment goes. Russia, another permanent member of the Security Council, has always been uneasy about the I.C.C., given the continuing disaster in Chechnya. Neighboring countries, through the African Union, have in general supported peace efforts and in some instances have helped the I.C.C. But of course such support must be handled with care, as the Bashir regime has active disputes with several of its neighbors - notably Chad, with whom it is virtually at war.

The American position is a confused one. On one level, the Bush administration is determined to hobble the I.C.C. For a few years, the United States has pressed I.C.C. member states to sign a bilateral agreement swearing not to surrender U.S. citizens, or foreign nationals working for the U.S., to the I.C.C. But the administration's anti-I.C.C. policy has backfired. Gen. Bantz J. Craddock, head of the Pentagon's Southern Command, testified before Congress this year that the insistence on special bilateral agreements is undermining American military influence. Eleven Latin American countries have not only lost military aid; they no longer receive American training - which means no bonds are established with their American counterparts. Other countries, especially China, are taking advantage of the American withdrawal to advance their own foreign goals. On a trip to Latin America last month, Secretary of State Condoleezza Rice acknowledged that this I.C.C.-immunity policy was damaging America's interests.

The American willingness to allow, without voting for it, the Security Council's referral of Darfur to the I.C.C. may have indicated a change in attitude, though it seems to have come more from a belief that the court's investigation couldn't hurt and might help. The State Department was working hard on Darfur even before Secretary of State Colin Powell declared in 2004 that Sudan's actions in the region constituted genocide. The peace agreement between North and South Sudan last year, which ended decades of war, was a rare (and fragile) success for Bush administration diplomacy in Africa. The United States has tried to push similar negotiations on the warring parties in Darfur, so far with little result. At the United Nations, John Bolton led the administration's push in February to have the African Union force in Darfur reorganized under U.N. auspices and expanded, which will probably take place by the end of the year.

At the same time, the Bush administration has stopped calling the crimes in Darfur a genocide. The administration does not want to lose the North-South agreement and the peace it has secured, and this may make it wishy-washy on Darfur. It has also found Sudan to be a useful ally in the war on terror. At least some Sudanese leaders being investigated by the I.C.C. are, according to American officials who asked not to be named, highly valuable, if unreliable, allies in hunting down Islamic terrorists. "In 2004, when the Sudanese decided to conclude the North-South peace, they got an A- on cooperation," a senior American official said. "They rendered people and gave us information on people we didn't even know were there. Since then they've done stuff that saved American lives." The C.I.A. flew Sudan's national-security director, Salah Abdallah Ghosh, to Washington for a debriefing last year. He shared information that his office had on Islamist militants training in Sudan before 9/11. Yet he is one of a handful of top security men orchestrating Khartoum's crimes in Darfur and deploying intelligence units that have carried out targeted killings since 2003. In December, a United Nations panel recommended that Ghosh and 16 other Sudanese officials face international sanctions. "The U.S. has pressed the U.N. not to include Ghosh on the list of people who should be subject to sanctions," John Prendergast, a senior adviser at the International Crisis Group, told me. "Trying to constructively engage with mass murderers in order to gather information is the wrong policy. It reinforces the regime's willingness to perpetrate atrocities."

The Bush administration is reluctantly coming to terms with the usefulness, if not the necessity, of the I.C.C. According to Roger Winter, the State Department's special representative for the Sudan conflict, who has been involved in America's Sudan policy for 25 years, "If you want to liquidate an Islamo-fascist regime that committed genocide, the way to do it that is accepted by the international community is through the C.P.A." - the Comprehensive Peace Agreement that ended the North-South war - "and prosecutions by the I.C.C."

Despite the ambivalences, mixed messages and conflicting interests in the international community, the biggest challenges for Moreno-Ocampo and his team are in Sudan. The Khartoum government is learning how to play the game. It is pushing tribal leaders from the Fur, Zaghawa and Massalit to accept reconciliation and compensation; it has its roving Special Criminal Court. And as the new minister of justice in Khartoum told me: "We are sending 15 prosecutors to Darfur. We will try the armed forces, and convict rape offenders, just to prove to the I.C.C. prosecutor that we are willing and able to try the offenders in Darfur." He did add that under Sudan's Constitution, the president and his cabinet members, members of the assembly and certain members of the armed forces and police may be immune from prosecution.

Leaving aside the question of sincerity, Sudan's efforts do point to deeper issues: should peace be allowed to trump justice? (The I.C.C. statute itself advises that the prosecutor suspend indictments if they are not in the interests of the victims.) Are reconciliation and compensation better justice than prosecution and punishment? In northern Uganda, many tribal groups were against the intervention of the I.C.C. at first. But some of Moreno-Ocampo's initial enemies, like the northern mayors he was meeting with when I went to visit him in The Hague, subsequently brainstormed with him on how to arrest Joseph Kony, the leader of the Lord's Resistance Army.

Sudanese intellectuals close to the government are very good at painting pictures of Armageddon to foreigners, insisting that if the international community demands justice it will only hasten war. As Ghazi Salah al-Addin, a moderate Islamist and presidential adviser, told me in Khartoum: "Those who feel threatened by the I.C.C., at a certain point, it will be a matter of life and death to them. They could block the C.P.A. The situation is so fragile. We shouldn't be complacent. Sudan is a very dangerous place. Your Somalia would be a picnic if Sudan degenerates into chaos. It would draw in the elements you fear most. It would require an influx of U.S. troops just like Afghanistan."

But that is why the I.C.C.'s work is so crucial, including to the United States: it has the potential to increase the pressure for peace as well as to deliver some justice. Darfurians and activists across Sudan see it as the only way of getting rid of one of the most murderous governments in the world. As the omda of Marla, Abdul Karim, told me, "After the intervention of the commission of inquiry and the U.N. and all of them confessed that there are crimes of war and crimes against humanity in this state, the best chance for the citizens of Darfur is that the perpetrators of these crimes should be taken to account at fair trials. Our hope is with the I.C.C."

So, quietly and doggedly, Moreno-Ocampo is stitching together his file against the top leaders of the genocide in Darfur, collecting evidence from victims, activists and international officials, and perhaps this might, in a very partial way, help keep Sudan from falling apart. In June he will present to the Security Council a report on the crimes committed, a road map of how he will proceed and probably a list of suspects to be indicted. Given that the Security Council is backing Moreno-Ocampo, if he issues arrest warrants against President Bashir and Vice President Ali Osman Taha, which is a real possibility, their political careers will effectively end.

I met Moreno-Ocampo recently at a cafe on the Upper East Side of New York to talk about his presentation at the Security Council. Sitting next to us was Hector Timerman, the Argentine consul, and his family. Timerman told me that when Moreno-Ocampo was first offered the job, Timerman was pushing him to accept. "Argentina is known in the world for the word desaparecidos - it is heavy for a country like us," Timerman said. "I told him, 'It's time to show the world a new Argentina committed to human rights."' A few jokes were made between the Timermans and Moreno-Ocampo about his arrogant confidence as a lawyer and prosecutor. And then Timerman's wife said there was, after all, a reason for it: "Luis never loses.

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Another (Editted) article from 1998 describing why the ICC was such a bad idea and presumably still is. The author is our recessively appointed UN Ambassador…

The National Interest> Winter, 1998

Courting danger: what's wrong with the international criminal court

John Bolton

Advocates of a permanent international court to try perpetrators of war crimes and other "crimes against humanity" achieved a major success in July 1997, with the adoption of a multilateral agreement called "the Statute of Rome." In the eyes of its supporters, the nascent International Criminal Court (ICC) is simply an overdue addition to the family of international organizations, an evolutionary step up from the Nuremberg tribunal, and the next logical institutional development over the ad hoc war crimes courts in Bosnia and Rwanda.

On the surface, this logic is straightforward. Through the Genocide Convention of 1948, the four Geneva Conventions of 1949,(1) and subsequent agreements, many of the "principles" of Nuremberg have been adopted in international treaties. The Cold War, however, essentially froze any prospect that the United Nations could serve as a useful vehicle for the creation of new institutions to "enforce" these conventions. Until the Security Council created the Bosnia tribunal in 1993, and a copy for Rwanda shortly thereafter, there were no international war crimes courts. Only the sporadic use of national judicial mechanisms existed, and more often than not these legal systems were either unavailable to the victims of war crimes and crimes against humanity, or were deemed inadequate afterthoughts. The ICJ, although popularly known as "the World Court", has jurisdiction only over disputes between states, not the adjudication of individual guilt or innocence for violations of international codes of conduct.

With the fading of the Cold War, and particularly with the inauguration of the Clinton administration, however, the International Law Commission(3) resumed serious discussions about the creation of a permanent international criminal court and made the final preparations for the Rome Conference in the summer of 1998.

The product of the Conference - the Statute of Rome - establishes both substantive principles of international law and creates new institutions and procedures to adjudicate these principles. Substantively, the Statute confers jurisdiction on the ICC over four crimes: genocide, crimes against humanity, war crimes, and the crime of aggression.

"Genocide" is defined essentially as in the original Genocide Convention of 1948, and prohibits acts intended to destroy national or ethnic groups. "Crimes against humanity" are broadly defined to prohibit "widespread or systematic" attacks against civilians that result in murder, enslavement, torture, rape, persecution, enforced disappearances, apartheid, and other enumerated offenses. Prohibited "war crimes" include acts "committed as a part of a plan or policy" such as: violations of the four Geneva Conventions; attacks against civilian populations and objects or humanitarian personnel or installations; using weapons that cause superfluous injury or unnecessary suffering; outrages upon personal dignity; starvation as a method of warfare; using civilians as human shields; and a variety of other offenses.

Organizationally, the Statute creates an International Criminal Court of eighteen justices to be selected by the treaty parties, and elaborates the Court's structures and procedures. Judges on the Court must reflect "the principal legal systems of the world" and an "equitable geographical representation." Unlike the ICJ, the Court's jurisdiction is "automatic", applicable to individuals accused of crimes under the Statute, in many cases regardless of whether their governments have ratified it. Moreover, the Court's jurisdiction includes not only those who actually commit offenses, but also commanders or persons who ordered their actions; who knew or should have known that crimes were about to be committed; or who failed to exercise proper control over subordinates, including heads of state or government and members of parliaments (Articles 27 and 28). Those convicted are subject to imprisonment and fines, but there is no provision for the death penalty

One might assume that the ICC is simply a further step in the orderly march toward the international rule of law and the peaceful settlement of international disputes, sought since time immemorial. Why, then, did the Clinton administration - a principal moving force to create a permanent war crimes court in the five years before the Rome Conference - find itself, to its dismay, unable even to sign the Statute, let alone propose its ratification by the Senate? Why was the United States so isolated from its European allies? What are the prospects for an ICC to which the United States does not belong?

But Whom Will the Hammer Strike?

What happened in Rome is the completely unintended consequence of the administration's own basic policies, starting in its first days in office. Security Council Resolution 808, creating an international criminal tribunal for Yugoslavia, was adopted on February 22, 1993, just a month after the inauguration. The Rwanda tribunal followed in Security Council Resolution 935 in July 1994. The administration declared these tribunals justifiable on their own merits, and also saw them as building blocks for the ICC. Over two years ago, David J. Scheffer, a confidante of Secretary of State Albright and chief American negotiator on the ICC, wrote:

The ultimate weapon of international judicial intervention would be a permanent international criminal court (ICC). . . . The ad hoc war crimes tribunals and the proposal for a permanent international criminal court are significant steps toward creating the capacity for international judicial intervention. In the civilized world's box of foreign policy tools, this will be a shiny new hammer to swing in the years ahead.(4)

But this new hammer - the Court and the Prosecutor - has serious problems of legitimacy. The ICC's principal difficulty is that its components do not fit into a coherent "constitutional" structure that clearly delineates how laws are made, adjudicated, and enforced, subject to popular accountability and structured to protect liberty. Instead, the Court and the Prosecutor are simply "out there" in the international system, ready to start functioning when the Statute of Rome comes into effect. This approach is inconsistent with American standards of constitutional order, and is, in fact, a stealth approach to eroding constitutionalism.

This difficulty stems from the authority purportedly vested in the ICC to create authority outside of (and superior to) the U.S. Constitution, and to inhibit the full constitutional autonomy of all three branches of the U.S. government - and, indeed, of all states party to the Statute. ICC advocates rarely assert publicly that this result is central to their stated goals, but it must be for the Court and Prosecutor to be completely effective. And it is for this reason that, whether strong or weak in its actual operations, the ICC has unacceptable consequences for the United States.

The Court's legitimacy problems are two-fold, substantive and structural. As to the former, the ICC's authority is vague and excessively elastic. This is, most emphatically, not a court of limited jurisdiction. Even the meaning of genocide, the oldest codified among the three crimes specified in the Statute of Rome, is not clear. The ICC's creation shows graphically all of the inadequacies of how "international law" is created.

The U.S. Senate, for example, could not accept the Statute's definition of genocide unless it is prepared to reverse the position it took in February 1986 in approving the Genocide Convention, when it attached two reservations, five understandings, and one declaration. One understanding, intended to protect American servicemen and women, provides that ". . . acts in the course of armed conflicts committed without the specific intent [required by the Convention] are not sufficient to constitute genocide as defined by this Convention."

Much of the media attention to the American negotiating position on the ICC concentrated on the Pentagon's fears for American peacekeepers stationed around the world. As real as those risks may be, however, the main concern is not that the Prosecutor will indict the isolated U.S. soldiers who may violate our own laws and values, and their own military training and doctrine, by allegedly committing a war crime. The main concern should be for the president, the cabinet officers who comprise the National Security Council, and other senior civilian and military leaders responsible for our defense and foreign policy. They are the potential targets of the politically unaccountable Prosecutor created in Rome.

The Statute of Rome's other two offenses (war crimes and crimes against humanity) are even more vaguely defined, to the point that an activist Court and Prosecutor can broaden the Statute's language essentially without limit. For example, the ICC Statute's definition of "war crimes" includes:

intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; [and]

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.

A fair reading of these provisions leaves one unable to answer with confidence whether the United States was guilty of war crimes for its aerial bombing campaigns over Germany and Japan in World War II. Indeed, if anything, a straightforward reading of the language probably indicates that the Court would find the United States guilty. A fortiori, these provisions seem to imply that the United States would have been guilty of a war crime for dropping atomic bombs on Hiroshima and Nagasaki.

It is precisely this kind of risk that has led the U.S. Supreme Court to invalidate criminal statutes that fail to define exactly what they prohibit under the "void for vagueness" doctrine. "Void for vagueness" is a peculiarly American invention, which is unfortunate because the ICC's list of ambiguities goes on and on.

We are nowhere near the end of the list of prospective "crimes" that can be added to the Statute. Many were suggested at Rome and commanded wide support from participating nations. Most popular was the crime of "aggression", which, as noted, was included in the Statute but not defined. Although frequently easy to identify, "aggression" can at times be something in the eye of the beholder. Thus, Israel justifiably feared in Rome that its pre-emptive strike in the Six-Day War almost certainly would have provoked a proceeding against top Israeli officials had the Statute been in effect in June 1967. Moreover, there is no doubt that Israel will be the target of complaint concerning conditions and practices by the Israeli military in the West Bank and Gaza. The United States, with continuous bipartisan support for many years, has attempted to minimize the disruptive role that the United Nations has all too often played in the Middle East peace process. As if that were not difficult enough, we now face the prospect of the Prosecutor and the Court interjecting themselves into extremely delicate matters at inappropriate times. Israel, therefore, was one of the few governments that voted with the United States against the Statute.

As troubling as the ICC's substantive and jurisdictional problems are, the problems raised by the Statute's main structures - the Court and the Prosecutor - are still worse. We are not considering a relatively passive court such as the ICJ, which can adjudicate only with the consent of the parties, or when the Security Council or the General Assembly asks for an advisory opinion. The Prosecutor is a powerful element of executive power, namely, the power of law enforcement. Never before has the United States been asked to place any of that power outside of the complete control of our national government.

Indeed, the supposed "independence" of the Prosecutor and the Court from "political" pressures (such as the Security Council) should be more a source of concern for the United States than an element of protection. "Independent" bodies in the UN system have often demonstrated themselves to be more highly politicized than some of the explicitly political organs, UNESCO and the ILO being cases in point. Political accountability, by contrast, which is almost totally absent from the ICC scheme, would have been a real protection. Instead, we now face the prospect, as "public choice" analysis would predict, that the ICC will be "captured" not by governments but by NGOs and others with narrow special interests, and the time to pursue them.

The American concept of the separation of powers reflects the settled belief that liberty is best protected when, to the maximum extent possible, the various authorities legitimately exercised by government are placed in separate branches. Continental European constitutional structures do not, by and large, reflect a similar set of beliefs. They do not so thoroughly separate judicial from executive powers, just as their parliamentary systems do not so thoroughly separate executive from legislative powers. That, of course, is entirely their prerogative, and substantially explains why they are more comfortable with the ICC's structure, which so closely melds prosecutorial and judicial functions. They may be able to support such an approach, but we should not.

By long-standing American principles, the ICC's structure utterly fails to provide sufficient accountability to warrant vesting the Prosecutor with the Statute's enormous power of law enforcement. Political accountability is utterly different from "politicization", which all agree should form no part of the decisions of either the Prosecutor or the Court. Today, however, the ICC has almost no political accountability and carries an enormous risk of politicization. This condition has little to do with our fears of isolated prosecutions of individual American military personnel around the world. It has everything to do with the American fear of unchecked, unaccountable power, and explains why America properly stood apart in Rome from Europe and Canada.

The Real International Interests at Stake

The most basic error is the belief that the ICC will have a substantial, indeed decisive, deterrent effect against the possible perpetration of heinous crimes against humanity. Ironically, ICC proponents now criticize Nuremberg as an inadequate, ex post facto response to such crimes, and argue instead for the deterrent value of a permanent Court and Prosecutor.

Rarely if ever has so sweeping a legal proposal had so little empirical evidence to support it. The evidence demonstrates instead that the Court and the Prosecutor will not achieve their central goal because they do not, cannot, and should not have sufficient authority in the real world.

Behind the optimistic rhetoric, ICC proponents have not a shred of evidence supporting their deterrence theories. In fact, they fundamentally confuse the appropriate roles of political and economic power, diplomatic efforts, military force, and legal procedures. No one seriously disputes that the barbarous actions about which ICC supporters complain are unacceptable, but those supporters make a fundamental error in trying to transform matters of power and force into matters of law. Misunderstanding the appropriate roles of force, diplomacy, and power in the world is not just bad analysis, but bad and potentially dangerous policy.

Recent history is filled with cases where even strong military force or the threat of force failed to deter aggression or gross abuses of human rights. ICC proponents concede as much when they cite cases where the "world community" failed to pay adequate attention, or failed to intervene in a sufficiently timely fashion to prevent genocide or other crimes against humanity. The new Court and Prosecutor, it is said, will now guarantee against similar failures.

But this is fanciful. Deterrence ultimately depends on perceived effectiveness, and the ICC is most unlikely to have that. Even if administratively competent, the ICC's authority is likely to be far too attenuated to make the slightest bit of difference either to the war criminals or to the outside world. In cases where the West in particular has been unwilling to intervene militarily to prevent crimes against humanity as they were happening, why will a potential perpetrator be deterred by the mere possibility of future legal action? A weak and distant Court will have no deterrent effect on the hard men like Pol Pot most likely to commit crimes against humanity. Why should anyone imagine that bewigged judges in the Hague will succeed where cold steel has failed? Holding out the prospect of ICC deterrence to the truly weak and vulnerable is a cruel joke.

Since the UN Charter charges the Council with "primary responsibility for the maintenance of international peace and security", it is more than passingly strange that the Council and the ICC are now to operate almost independently of one another. Strange, that is, only if one is unfamiliar with the agenda of many governments and nongovernmental organizations supporting the ICC, whose agenda has for years included a downgrading of the Security Council and especially the weakening of the veto power of its five Permanent Members.

This attempted marginalization of the Security Council is a fundamental new problem created by the ICC that will have a tangible and highly detrimental impact on the conduct of U.S. foreign policy. The Council now risks having the ICC interfere in its ongoing work, with all of the attendant confusion between the appropriate roles of law, politics, and power in settling international disputes.

Accumulated experience strongly favors a case-by-case approach, politically and legally, rather than the inevitable resort to adjudication contemplated by the ICC. One contemporary alternative is South Africa's Truth and Reconciliation Commission. I do not argue that the South African approach should be followed everywhere, or even necessarily that it is the correct solution for South Africa. But it is radically different from that contemplated by the ICC, which seeks vindication, punishment, and retribution as its goals, as is the case for most criminal law enforcement institutions. The clear point is that, in some disputes, neither retribution nor complete truth-telling is the best objective.

Another alternative, of course, is for the parties themselves to try their own alleged war criminals. ICC proponents usually ignore or overlook this possibility, either because it is inconvenient to their objectives, or because it utilizes national judicial systems and agreements among (or within) nation-states to implement effectively. One important example involves Cambodia. Although Khmer Rouge genocide is frequently offered as an example of why the ICC is needed, its proponents never explain why the Cambodians should not themselves adjudicate alleged war crimes.

It is by no means clear that even the tribunal's "success" would complement or advance the political goals of a free and independent Bosnia, the expiation of wartime hostilities, or reconciliation among the Bosnian factions. In Bosnia, there are no clear communal winners or losers. Indeed, in many respects the war in Bosnia is no more over than it is in the rest of the former Yugoslavia, such as Kosovo. Thus, there is no agreement, either among the Bosnian factions or among the external intervening powers, about how the war crimes tribunal fits into the overall political dispute or its potential resolution. Bosnia shows that insisting on legal process as a higher priority than a basic political resolution can adversely affect both the legal and political sides of the equation.

In short, and very much unlike Nuremberg, much of the Yugoslav war crimes process seems to be about score settling rather than a more disinterested search for justice that will contribute to political reconciliation. If one side - most likely the Serbs - believes strongly that it is being unfairly treated, then the "search for justice" will have harmed Bosnian national reconciliation. This is a case where it only takes one to tango. Outside observers might disagree with this assessment, but outside observers do not live in Bosnia.

And again, the option of Bosnians trying their own war criminals is not even seriously discussed. One reason, of course, is that at the time of Dayton the Hague tribunal was already a fact of life that some parties did not want to modify. More troubling is that Dayton did not really accomplish much more than a de facto partition of Bosnia. Bluntly stated, if Bosnian Serbs, Croats, and Muslims had reached a true meeting of minds at Dayton, they would have resolved the question of war crimes allegations. That they did not is a straightforward admission that Dayton simply papered over, and almost certainly only temporarily, the underlying causes of past and future conflicts.

The experience of the Rwanda war crimes tribunal is even more discouraging. Widespread corruption and mismanagement in that tribunal's affairs have led many simply to hope that it expires quietly before doing more damage. At least as troubling, however, is the clear impression many have that score settling among Hutus and Tutsis - war by other means - is the principal focus of the Rwanda tribunal. Of course it is.

The plain fact is that additional "fixes" over time to the ICC will not alter its multiple inherent defects. The United States has many alternative foreign policy instruments to utilize that are fully consistent with our national interests, leaving the ICC to the obscurity it so richly deserves. Signatories of the Statute of Rome have created an ICC to their liking, and they should live with it. We should not.

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And how has our response to crises like Rwanda changed over the years, what have we learned?

http://www.refugeesinternational.org/content/article/detail/953/?PHPSESSID=5ce00f92779c166324e1d

Ten Years Later: Ten Steps to Avoid Another Rwanda

04/09/2004

In 1995, then RI President Lionel Rosenblatt listed ten steps the world needed to take to avoid another Rwanda.  There has been little progress on the recommendations.  Thanks in part to the efforts of RI Board Member Richard Holbrooke, there has been more focus on internally displaced persons, but the international response to their needs for material assistance and protection is still poorly organized. The U.S. government's structure for humanitarian response has become more complex, but the effort tends to feature an ad-hoc approach to each emergency, with little planning or coordination. U.S. responses also increasingly involve the Pentagon, posing serious questions about effectiveness and appropriateness that remain unanswered.  At the international level, most emergencies today still do not have an overarching UN coordinator with sway over the individual agencies.

Thus, in the context of the Rwanda anniversary, we should observe that "never again" rings very hollow.  Next door to Rwanda, in Burundi, which features the same ethnic mix, the UN has attempted preventive efforts, but the situation remains tenuous with fundamental issues such as land rights and disarmament largely unresolved.  The Darfur region in western Sudan illustrates that the international community is still slow to respond to potential genocide and crimes against humanity.  Rwanda remains a chilling example of what happens when the world fails to act, allowing evil to run its course.

Refugees International therefore recommends an updated ten steps the U.S. and the international community must take if another genocide like Rwanda is to be avoided:

·         Early Warning and Response: The signs of an impending crisis are not that difficult to see.  The genocide in Rwanda was planned well in advance, and many observers, including the UN's own team in the country, reported this evidence to their superiors.  The Brahimi Report noted that the UN lacks capacities for intelligence gathering, and recommended the creation of an Information and Strategic Analysis Secretariat (ISAS).  While the UN Secretariat and the Security Council have welcomed this proposal, some UN member states have blocked action, fearful of getting identified as potential crisis points.  The Bush Administration should nevertheless support implementation of this proposal, and should ensure U.S. intelligence agencies assist and cooperate with this UN office once it is created.

·         Conflict Prevention Tools: Conflict resolution skills, negotiation and human rights training, the ability to broadcast peace information and tools, and civil-affairs training for the military are all important parts of a preventive strategy to avoid the outbreak of conflict.  In particular, the UN must be given the ability to conduct public information campaigns during peace operations to counter negative propaganda and to ensure the populace understands the UN's mission. Popular misunderstandings helped precipitate the tragedy in Somalia in 1993.

·         Early Deployment of Troops:  The UN must be given the capacity to rapidly deploy peace operations troops to a crisis point.  The most logical solution is the creation of a UN Rapid Reaction Force.  If this is not politically feasible, then at the least member states must clearly identify and be willing to commit their national troops for rapid deployment to a UN peace operation.  The UN must also have far better logistical support capacity for peace operations, including air lift support.  Either member states must provide this capacity, or the UN must be allowed and encouraged to contract private sector firms with the requisite logistical support capacity.

·         Emergency Relief: After the outbreak of a humanitarian crisis, a quick response can save lives.  Yet, the massive outflow of Rwandan refugees into Goma, in the Democratic Republic of the Congo, illustrated that the UN, and even the U.S. military, was unprepared to provide basic necessities, such as clean water.

·         Countering Violence: The ability of states to maintain and uphold the rule of law must be supported.  To accomplish this, the UN's ability to conduct rule of law operations must be improved. The most logical solution is to create an UN Emergency Justice Corps, composed of civilian police, constabulary police, judges, lawyers, other judicial experts and personnel, and penal system experts.  If public security can be maintained in a failing state, an outbreak of conflict might be avoided.  Just as importantly, after a conflict has taken place, if the rule of law is not restored, development and reconstruction efforts will surely fail.

·         The Internally Displaced: There is no single UN agency responsible for internally displaced persons (IDPs), yet IDPs outnumber refugees.  They have lost their homes, their jobs, and have often been the victims of atrocities, just like refugees, but they have not crossed an international border.  They deserve the same level of assistance that refugees get, and both refugees and IDPs deserve more support than they currently get from the international community.

·         Relief to Development: As a humanitarian crisis winds down, refugees and IDPs, as well as former combatants, must be reintegrated into society.  This has rarely been done well, but is nonetheless critical to long-term success of the peace process.  The UN needs better and more cost-effective ways to implement and manage disarmament, demobilization, and reintegration projects.

·         UN Emergency Czars: The UN must continue to seek out and appoint persons of world political stature who understand the complexities of peace operations to serve as the ultimate coordinator of the numerous UN and international agencies that are supposed to work together during a peace operation.  Without an effective overseer, UN agencies tend to compete with and battle one another.  Such persons are also better able to mobilize the political will necessary to stick out the tough spots, as well as hold their own against national interests that might otherwise weaken the operation.

·         Reform at the UN: The recommendations contained within the Brahimi Panel's 2000 Report on United Nations Peace Operations should be supported and implemented. For example, to ensure greater efficiency and stability, the financing of the Department of Peacekeeping Operations (DPKO) and related UN headquarters peacekeeping support should be moved from the Peacekeeping Support Account into the UN Regular Budget.

·         Reform in the U.S.: The U.S. still seems reluctant to undertake peace operations, and when it does, it does not do the job well.  In 2003, the Bush Administration chose to keep several thousand U.S. Marines that could have stopped the killing in Liberia on their ships out in the harbor. In early 2004, the Administration deployed Marines to Haiti, but at first kept them from preventing looting and related violence that destroyed infrastructure valued at over half of Haiti's meager annual economic output. The U.S. needs a better capacity to plan for, manage, and participate in the civilian post-combat stability operations that take place after military intervention.  The U.S. also needs a better system for the provision of civilian police to peace operations than sub-contracting with a private company to hire police who have no direct accountability to the U.S. government.

Lionel Rosenblatt is President Emeritus, and Peter Gantz is Peacekeeping Associate, of Refugees International.

 Thats all Folks!!