I Less Bravely Disagree with Julian

by Kevin Jon Heller

Like Julian, I do not believe that the ICC’s involvement in Darfur is in any way a panacea for the region’s ills. And I am concerned that the Prosecutor has summonsed (at this point) only one high-ranking official in the Sudan’s government, overlooking the complicity of Sudan’s President, Omar El Bashir, and Vice-President, Ali Osman Taha, in the Darfur atrocities. I take issue, however, with Julian’s insistence that the Court’s involvement actually makes the situation in Darfur worse.

First, Julian’s claim that “the ICC itself makes the intervention of outside military powers less likely because… such interventions themselves would be subject to ICC jurisdiction and potential prosecutions” is simply incorrect. Paragraph 6 of Security Council Resolution 1593, which referred the Darfur situation to the ICC, expressly exempts peacekeepers sent by non-member States from the Court’s jurisdiction:

[N]ationals, current or former officials or personnel from a contributing State outside Sudan which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to operations in Sudan established or authorized by the Council or the African Union, unless such exclusive jurisdiction has been expressly waived by that contributing State.

Second, I fail to see how the ICC’s involvement “allow[s] the U.S. and other powers to dump off responsibility for Darfur on international institutions.” What exactly have the U.S. and other powers done that they can now stop doing? The only serious recent effort to promote peace in the Sudan — a 20,000 soldier peacekeeping force — was also initiated by an international institution: the UN. And the overwhelming majority of those soldiers were slated to come from African countries, not from the West. If anything, then, the ICC’s involvement in Darfur is likely to increase the possibility of Western involvement by ensuring that the atrocities in Darfur remain front-page news (at least in Europe…) for the foreseeable future. After all, human-rights scholars and activists have continually criticized the West for ignoring Darfur in favor of “sexier” issues like terrorism. So the ICC’s high-profile efforts can only be a good thing — providing “leverage for more effective international action,” as one conservative who normally opposes the ICC wrote in the Washington Times.

Third, although Julian’s skepticism toward the deterrent value of international prosecutions is certainly justified, I think his assertion that “the indictments or possible indictments of Sudanese government officials are not only unlikely to deter their past and future behavior… but they may actually deter them from acceding to a peace settlement since they now face potential prosecution” is overstated. What peace settlement? The Sudanese government has never seriously negotiated with the rebels, and it has consistently rebuffed the UN’s efforts to send a multinational peacekeeping force to the Sudan. The Sudan is not Uganda, where both the government and the rebels believe that the ICC’s efforts are counterproductive. (I have previously noted my agreement with Julian on the Uganda issue.) The rebel groups in Darfur, by contrast, have applauded the ICC’s involvement — largely because they know that there is no peace process for its involvement to disrupt. So what exactly is lost by allowing the ICC to prosecute high-ranking members of the Janjaweed and the Sudanese government? Even if there is minimal deterrent value to the prosecutions — and it is difficult to argue that the summons won’t have at least some short-term deterrent value, given that the ICC’s investigation is ongoing and that both of the named defendants continue to be involved in Darfur — some deterrence is better than none.

Again, the ICC’s involvement cannot possibly be expected to bring peace to Darfur. Julian is absolutely right to insist that more needs to be done. But I disagree that the ICC will make the situation worse. Prosecuting high-ranking members of the Janjaweed and the Sudanese government is a small step in the right direction, but it is a step nonetheless.


4 Responses

  1. I concur with Mr. Heller’s opinion that the ICC isn’t making things notably worse, primarily because I feel that without anyone seriously willing to apply pressure to Sudan, a peace pact was unlikely in any case.

  2. I applaud the exchange on this difficult issue. Two minor points on Kevin’s post.

    On the first point, regarding whether outside military intervention would be deterred, I don’t know whether you and Julian are addressing the same scenario. Clearly, the exemption relates only to actions authorized by the Security Council or the African Union — so, for example, if the US were to intervene on some other basis (e.g., humanitarian intervention), it would not be safeguarded, and might thus be (additionally) dissuaded from doing so by the ICC referral. Even with UN-authorized deployments of US nationals, I suppose there might be a concern about whether actions had exceeded the scope of the operation — and one can well imagine the argument that any war crime would, by definition. Finally, going forward, it’s not as though negotiating such exemptions is costless. I don’t think these concerns are dispositive, esp. not in this case, but I also don’t think they’re completely addressed by this particular exemption.

    On the second point, whether the ICC allows the US and other powers to shirk responsibility, I think the point that it’s unclear what’s being lost is right. But it doesn’t follow that “the ICC’s high-profile efforts can only be a good thing.” I’d note in this connection that the linked editorial, for what little it’s worth, endorses the ICC approach “only in the context of international action to halt the killing there. Otherwise, it is just a self-satisfied fig leaf.”

    This isn’t a problem unique to the ICC, or even to international institutions, but it shouldn’t be ruled out. Again, on balance, I don’t think this point carries the day, but to think that pouring effort into the ICC can only be a good thing seems overstated.

  3. That was potentially a very costly post. Let me clarify: by disagreeing mildly with Kevin, I am not agreeing with Julian’s disagreement with Angelina Jolie. Rather, I am suggesting to Ms. Jolie, a devoted fan of this blog, that I am open to the views she expresses, but could be persuaded to endorse those views more vigorously.

  4. Ed’s points are well taken. I would be surprised if the U.S. intervened without either the UN or the AU’s agreement, but agree with Ed that the exemption would not apply if it did. I’m not sure I agree, though, with his war crimes comment. The language of the exemption is absolute: “all alleged acts or omissions arising out of or related to operations in Sudan.” If that language is not designed to prohibit the ICC from jurisdiction over its core crimes — including, obviously, war crimes — then I fail to see the point of including it.

    Regarding the lovely and intelligent Ms. Jolie, I fear that he was being sarcastic about her being a devoted fan of the blog. But I really hope he’s not…

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