The National Pulse

Warming Trend

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The U.S. Government’s icy relationship with the International Criminal Court appears to have thawed a bit—just a bit—over the past few months.

The United States has been wary of the ICC ever since it was created in 1998 by a United Nations statute negotiated in Rome. The court came into actual existence in 2002 as the first permanent international tribunal empowered to try individuals, including government leaders and members of military forces, for serious criminal violations of international human rights law. So far, 99 nations have ratified the Rome Statute.

The primary U.S. concern, however, has been that the court might snag American personnel in its jurisdictional web even though the United States hasn’t ratified the Rome Statute. The United States also is concerned that the ICC prosecutor might initiate politically motivated cases. The court’s proponents maintain there are safeguards against those things happening.

President Clinton finally signed the Rome Statute on his last day in office, but President Bush quickly rescinded that signature while the State Department began seeking pledges from nations that ratified the ICC—including many U.S. allies in Europe and elsewhere—not to turn over U.S. personnel to the court’s jurisdiction. The State Department says it has reached 100 so-called Article 98 agreements (referring to a key jurisdictional provision in the Rome Statute). Meanwhile, Congress included provisions in the 2002 American Service-Members’ Protection Act that permit sanctions against nations that don’t consent to those agreements.

The break in this cold war against the ICC came March 31, when the United States abstained from using its veto power to block a resolution by the U.N. Security Council referring a major case to the court’s chief prosecutor.

The Security Council resolution covers alleged violations of international human rights laws in the Darfur region of Sudan in northeast Africa, where civil war has been going on since 2003. Relief agencies and human rights groups estimate that as many as 400,000 people have died from violence, disease and starvation. And more than 2 million are estimated to have been displaced, primarily through actions by government-backed militia. Reported atrocities include widespread rape and sexual violence.

On June 6, ICC Chief Prosecutor Luis Moreno-Ocampo announced that his office would open an investigation in Darfur. The ICC prosecutor’s office already is investigating alleged human rights violations arising out of conflicts in two other African states, Uganda and the Democratic Republic of the Congo (formerly Zaire). But both of those nations are parties to the Rome Statute that referred their situations to the court.

Still a Yes

The Darfur situation stands out for two reasons, say international law experts. First, the U.N. Security Council’s referral “is the first time the international community has given a vote of confidence to the court on a very important issue,” says Heather B. Hamilton, vice president for programs at Citizens for Global Solutions, based in Washington, D.C. As such, that action recognizes “the growing importance of the court in international law,” she says.

But just as important is the fact that the U.S. government did not veto the Security Council’s resolution.

Algeria, Brazil and China also abstained from the otherwise unanimous vote by the 15-member Security Council to refer the Darfur situation to the ICC prosecutor. But the American vote was the one that mattered most because of the U.S. government’s open opposition to the court. A U.S. veto had been widely expected even though both Congress and the Bush administration have forcefully condemned the actions in Darfur. An abstention is “a nonyes yes,” notes Ruth Wedgwood, a professor at Johns Hopkins University’s School of Advanced International Studies in Washington, D.C. As such, the U.S. action “is a degree of global warming, if you will. It is a bit of a thaw.” Other assessments go even further. In the view of Michael P. Scharf, director of the international law center at Case Western Reserve University School of Law in Cleveland, the effect of the U.S. abstention is to “totally recognize the legitimacy of the ICC. Everyone reads this as, ‘The United States has just blinked.’ ”

But in a March 31 statement explaining the American position, Anne W. Patterson, then acting U.S. representative to the United Nations, said that the government’s fundamental opposition to the ICC hasn’t changed.

“We have not dropped, and indeed continue to maintain, our long-standing and firm objections and concerns regarding the ICC,” Patterson said, especially on the issue of jurisdiction over government officials and other nationals of states not party to the Rome Statute.

Patterson indicated, however, that those concerns were addressed by a provision in the Security Council resolution that excludes officials from nations that have not ratified the Rome Statute from jurisdiction of the ICC in any cases arising out of its Darfur investigations. “In the future,” she said, “we [the United States] believe that, absent consent of the state involved, any investigations or prosecutions of nationals of nonparty states should come only pursuant to a decision by the Security Council.”

That statement is significant, experts say, because it acknowledges the Security Council’s authority to refer possible cases to the ICC with jurisdictional restrictions that the U.S. government considers appropriate.

That position “gives life to the idea that the U.S. and the court might find a way to live together, and that the U.S. might find a way to at least reduce its opposition to the court,” says Leila N. Sadat, a law professor at Washington University in St. Louis. “This at least opens a door.”

But now the pressure will be on the ICC prosecutor to conduct an effective investigation in Darfur. That will be no easy task, experts say, without some measure of cooperation from the Sudanese government.

Sudan also may claim the ICC prosecutor lacks jurisdiction over cases in Darfur on grounds that its own courts already are dealing with them. But in a report to the Security Council on June 29, Moreno-Ocampo disagreed with that conclusion. Sudan may, however, appeal to a panel of the court.

How the ICC handles these issues will be crucial to its future, Scharf says. “Courts try cases, but cases try courts, too,” he says. “This is the case that will historically be seen as testing the court.”

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