Goldsmith, ICC and Darfur

Julian noted Jack Goldsmith’s op ed in yesterday’s Washington Post arguing that the US should support a Security Council referral of the Darfur genocide to the ICC, a position which Human Rights Watch and others support. I admire Goldsmith’s attempt to bridge the gap between the ICC supporters and opponents, but I have a slightly different take on what US policy toward the Darfur problem should be. He is right that there is not much left of “legitimizing” or “de-legitimizing” the ICC at this point; supporters think it is legitimate, opponents think it is not. What can be legitimated, however, are real efforts at addressing the worsening situation in Darfur, of which prosecution is but one element. And therein lies one of the other, perhaps more subtle and therefore less discussed, grounds on which the US has opposed the ICC – i.e., that it injects outside prosecutions into armed conflicts that are not yet ripe for resolution, and thus poses the danger of limiting the range of solutions. I think Goldsmith ignores the strength of the argument and the danger that more harm could be done to the value of international humanitarian law by throwing in a referral to the court as a way to garner support for sanctions against Khartoum.

Goldsmith says that “even though criminal courts have done little to bring reconciliation to Rwanda or the former Yugoslavia,” or even “deter future crimes,” it is nevertheless “possible that the concrete threat of an ICC prosecution could temper the killings in Darfur without adversely affecting the recent peace deal…” While he seems to recognize that this is a pretty shaky hypothesis, he nonetheless supports referring the Darfur case as a more “effective policy.” I’m not sure I agree. After all, there is no evidence that the existence of the ad hoc tribunal for former Yugoslavia did much to temper Milosevic’s atrocities in Srebrenica in 1995 or Kosovo in 1998-1999. In fact, there is something to the argument that the continuing violations only underscored the marginalization and “unreality” of international humanitarian law in the context of ongoing conflict. Agreeing to prosecutions is often a way of states to defer – or fail to act on – their actual legal obligations under the Genocide Convention. International lawyers should not let them off the hook so easily.

At the end, my difference with Goldsmith may be about timing and sequencing. And I may be underestimating the value of the ICC chip in diplomacy with Europe. But to me, the better policy for the US would be to support and lead a real international coalition to stop the genocide in its tracks — serious sanctions, serious commitment to military intervention — and promote a process toward political reconciliation. Part of that process may include a later agreement to prosecute perpetrators, or it may include some other approach to truth and reconciliation. But let’s stop the killing first.