February 15, 2005 | WebMemo on International Organizations
The United States and many advocates of the International Criminal Court (ICC) have long been at odds over the structure, autonomy, and jurisdiction of the Court. While these differences have not been resolved, the U.S. opposition to a United Nations Security Council resolution referring the situation in Darfur region of Sudan to the ICC has rekindled international and domestic attention on America's policy toward the ICC.
Proponents of the ICC argue that the court is the best option to investigate allegations of war crimes, human rights violations, and possible genocide in Darfur. The U.S. instead has advocated a regional ad hoc tribunal established by the Security Council charged with specifically addressing the situation. As with earlier disagreements over U.S. policy toward the ICC, advocates of the Court seek to portray the U.S. position as shortsighted and at odds with human rights.
Nothing, however, could be further from the truth. The U.S. position is one based on accountable government, respect for sovereignty, and a desire for local resolution of problems.
U.S. Efforts to Stop Atrocities in Darfur
The crisis in Darfur began in 2003 when two rebel groups challenged the authority of the Islamist government in Khartoum. The rebel groups claimed that the government was discriminating against the African ethnic groups in favor of nomadic Arab ethnic groups. The resulting conflict quickly escalated: Over 70,000 people have died, and 1.8 million have fled to refugee camps in Sudan and neighboring Chad. Numerous reports allege rampant atrocities committed by the Arab "Janjaweed" militia groups against non-Arab villagers with the support of the Khartoum government.
The U.S. has been leading the effort to stop the atrocities in Darfur. While serving as Secretary of State, Colin Powell declared that violations of human rights, war crimes, and genocide are occurring. The U.S. led the effort to pass a Security Council resolution condemning the atrocities and has pressed for economic sanctions on Sudan because of the government's support for militia groups committing atrocities in Darfur. The U.S. has been a key supporter of the African Union peacekeepers authorized by the Security Council to monitor the situation, in addition to being the largest donor of humanitarian aid to the region, providing nearly $550 million since 2003.
The U.S. has been frustrated in its effort. The Security Council has not imposed sanctions because China, France, and Russia, afraid that their commercial interests would suffer, have threatened to veto resolutions imposing sanctions. The United Nations Human Rights Commission has minimized criticism of Sudan because that nation sits on the Commission. And ICC advocates have focused attention away from the true failure-the inability to get a Security Council resolution imposing sanctions if Sudan fails to constrain the Janjaweed-onto U.S. opposition to a Security Council resolution requesting that the ICC investigate atrocities in Darfur.
Why the ICC Is Not the Best Option
The ICC has no jurisdiction in Sudan because that nation is not a party to the ICC and the alleged crimes are occurring in Sudan and being committed by Sudanese people. Therefore, advocates of the ICC are urging the Security Council to refer the case to the court by way of Article 13 (b) of the Rome Statute. The U.N. commission investigating abuses committed in Darfur offers a useful summary of the arguments on why the Security Council should refer the case to the court. These arguments are not convincing.
The bottom line is that, while the U.S. is opposed to a Security Council resolution supporting an ICC investigation in Darfur, it also has proposed a credible-perhaps superior-alternative for holding perpetrators of crimes to account.
The United States has been a leader in trying to force the Sudanese government to stop its support of the militia groups committing atrocities in Sudan's Darfur region. The failure of the Security Council to impose sanctions on the Sudanese government despite the best efforts of the U.S. government is a tragedy that sadly reveals the failures of the U.N. in dealing with human rights abuses. Unfortunately, ICC advocates have focused attention away from the true failure onto U.S. opposition to the ICC. In truth, the U.S. fully supports the idea of a tribunal to address allegations of war crimes, human rights abuses, and genocide.
As important as it is to bring those responsible for the atrocities in Darfur to account, the first priority must be to stop the killing. If supporters of the ICC spent a fraction of the energy consumed by criticizing the United States on trying to pressure China, France, and Russia to support a strong Security Council resolution imposing sanctions on Sudan if the Sudanese government continues to support militia groups and authorizing a peacekeeping force charged with protecting the people in Darfur, they would do far more good for those suffering in Darfur.
Brett D. Schaefer is Jay Kingham Fellow in International Regulatory Affairs in the Center for International Trade and Economics at The Heritage Foundation and former assistant for ICC policy at the Department of Defense.
For a discussion of this debate, see Brett D. Schaefer, "Justice by Fiat," National Review on-line, June 21, 2004, at www.heritage.org/Press/Commentary/ed062104e.cfm; see also Lee A. Casey and David B. Rivkin, Jr., " The International Criminal Court vs. the American People," Heritage Foundation Backgrounder No. 1249, February 5, 1999.
Secretary of State Colin L. Powell, "The Crisis in Darfur," testimony before the Committee on Foreign Relations, U.S. Senate, September 9, 2004, at www.state.gov/secretary/former/powell/remarks/36042.htm.
Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Section IV, Part II, 1(i), "Justification for suggesting the involvement of the ICC," paragraph 574, Geneva, January 25, 2005, at www.unicwash.org/selected/darfur2.htm.
David B. Rivkin Jr. and Lee A. Casey, "Darfur's Last Hope," The Washington Times, February 4, 2005, A19.
Casey and Rivkin, "The International Criminal Court vs. the American People."
Budgets are approved for two years. Therefore, these numbers are half of the biennial budget of the tribunals. International Criminal Tribunal for the former Yugoslavia, "The ICTY at a Glance," at www.un.org/icty/glance/index.htm, and International Criminal Tribunal for Rwanda, "General Information," at www.ictr.org/default.htm.
 Staff costs are based on 2004-2005 appropriations for Posts, Other staff costs, Non-staff compensation, and Consultants and experts. This total was divided in half to reach an annual staff budget. The annualized staff budget was divided by half the gross budget to get a staff cost ratio. The annualized staff budget was divided by the number of staff for the respective courts to get a per staff average cost. Sources: "First Performance Report of the International Tribunal for the Former Yugoslavia for the Biennium 2004-2005," Report of the Secretary-General, General Assembly Document A/59/547, November 2, 2004, p. 5; and "First Performance Report of the International Criminal Tribunal for Rwanda for the Biennium 2004-2005," Report of the Secretary-General, General Assembly Document A/59/549, November 2, 2004, p. 4. Calculations based on budget data provided on "Table 2: Summary of projected expenditures by object of expenditure and main determining factors" in each report.