ICC & Darfur

David B. Rivkin Jr. and Lee A. Casey make the case in the Wall Street Journal that International Criminal Court (ICC) prosecutor Luis Moreno-Ocampo’s filing of charges against Sudanese President Omar al-Bashir will make it harder, not easier, to fight the genocide in Darfur. First, they note that Sudan is not a signatory to the “Rome Statute of the International Criminal Court,” the treaty that created the ICC.

Under international law norms, the ICC can prosecute citizens of signatory states. But it cannot prosecute citizens of nations, such as Sudan, that are not party to the ICC.

That puts Mr. Ocampo’s indictment in a precarious position. Does the Security Council have the power to bind, in this fashion, U.N. members that have not joined the ICC?

Heads of state are not, of course, “above the law.” But they are not subject to the judicial process unless and until their own state consents.

This forces Sudan to assert its primacy concerning events in Darfur, and hurts the diplomatic efforts there:

Significantly, it is not alone in this view. After an emergency July 19 conference in Cairo, the 22-member Arab League announced “solidarity” with Sudan and said that only Sudanese courts have jurisdiction there.

Prosecutions of the type undertaken by the ICC raise issues fundamentally different from those involved in breaking an ordinary criminal conspiracy, and can ultimately do more harm than good.

Here, that harm will be in making it more difficult for the diplomats to achieve peace in Darfur. Branding Mr. Bashir, who may be the only man able to guarantee that peace, as a “war criminal” changes everything. He can no longer be engaged on anything like “normal” terms, his supporters have been enflamed, and his incentives to reach an accord severely reduced.

Go read the entire article.

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