Sunday, July 27, 2008
Politics and the International Criminal Court
There is a story in the New York Times this morning that -- unwittingly, no doubt -- illustrates why the United States should not recognize the International Criminal Court. The key bit:
The dueling war-crimes cases of July — first [Sudan’s president, Omar Hassan] Bashir is told that a prosecutor is seeking a warrant for his arrest on war-crimes charges, and then Mr. Karadzic actually gets arrested in Belgrade, Serbia, in a move that will most likely send him to The Hague — received two very distinct reactions from the international community. The reason may well lie in the two very distinct pathways that Mr. Bashir could choose in our opening puzzle.
Just about everyone except a few übernationalistic Serbs appeared to cheer the arrest of Mr. Karadzic, who was indicted for the 1995 massacre in Srebrenica in which Bosnian Muslim men were singled out for slaughter. But curiously, the request by the International Criminal Court’s prosecutor, Luis Moreno-Ocampo, for a warrant for Mr. Bashir’s arrest was greeted with ambivalence among international human rights activists.
“The problem is, it doesn’t stop the war,” said one human rights official, who spoke on condition that his name not be used. Gary Bass, a Princeton professor who wrote a book on the politics of war-crimes tribunals, said human rights advocates were caught in a bind in the Bashir case because they worry that an indicted Mr. Bashir might think he has no option but to continue waging war; if he makes peace, he will still have an indictment hanging over his head and could end up in The Hague.
“From a human rights perspective, what’s more important?” Mr. Bass asks. “Delivering justice for people who’ve been victimized, or preventing future victimization?”
There is, apparently, growing recognition in the human rights "community" that ICC indictments might prolong wars, because indicted but uncaptured leaders have no alternative but to fight to the bitter end. Why? Because there is nobody empowered to grant immunity as part of a surrender package.
Of course, this view is obviouslyy controversial. Otherwise, the quoted "human rights official" would not have needed to withhold his name (shabby journalism points to the New York Times for not explaining why the human rights official insisted on anonymity). It is controversial not only because it validates the position of the hated United States, but because it undermines the cherished ideal (among transnational progressives, at least) that legal process can prevent war. This would seem to be a case of legal process prolonging war.
Imagine how this dynamic might play out under a "progressive" American president given to military interventions for humanitarian reasons (Rwanda/Darfur scenarios come to mind). Such a war might go on much longer than the United States would prefer because the ICC limtis its ability to negotiate with the enemy by indicting the enemy's leadership. Our soldiers would be in harms way and civilians would continue to die because some prosecutor in The Hague files an indictment that nobody with any skin in the game has the power to quash.
Now, the linked article addresses the counterarguments, which is that ICC indictments can shape the postwar political environment in favorable ways, including by discrediting the bad guys and giving heart to the presumably less criminal opposition. Fair enough, but in a world in which only one country -- the United States -- has either the capability or the inclination to intervene against the bad guys, these arguments are really nothing more but the legalistic expression of the idea that countries that chose not to intervene should now participate in shaping the postwar settlement. We do the fighting, they determine what happens next. Perhaps this is why Barack Obama has not (to his credit) committed to joining the ICC. (Aside: I wonder how many of his supporters understand his position?)
Then, of course, there is the meta point of the article -- that indictments of the ICC are not actually meant to deter war crimes (there is a lot of evidence in the article that they do not), but rather are a means of political leverage toward a geopolitical objective. That, of course, is precisely why the United States fears that the court will be used against it.
MORE: Then again, maybe prison teaches war criminals to get along!
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