Advocates of the International Criminal Court (ICC) are touting the widely heralded indictment of Sudan’s President, Omar Hassan al-Bashir, for war crimes and crimes against humanity as proof of the ICC’s virtues.
The Obama administration may even use the indictment as justification to become an ICC signatory and reverse the Bush administration’s withdrawal from the Rome Statute. However, skeptics should not be fooled. The ICC is supposed to prosecute individuals for genocide, crimes against humanity, and war crimes. At best, the ICC is a toothless organization; at worst, it is a dangerous bureaucracy that will undermine peace by subjecting Americans to international prosecution.
Proponents of a more internationalized legal system will dismiss these arguments as the type of American “go it alone” arrogance that alienated allies during the Bush years. However, consider the reality of Sudan: the United Nations estimates that approximately 300,000 people have died in Darfur and millions more displaced from their homes as a result of a government sponsored campaign that trained, supported, and financed Arab militiamen who terrorized Darfur villages.
It has been years since the international community has known of the horror that is Darfur, and now, it wields an arrest warrant not worth the paper on which it is printed.
Unsurprisingly, human rights groups praised the development. Tawanda Hondora, deputy director of Amnesty International’s Africa Programme, said, “This sends a strong signal that the international community no longer tolerates impunity for grave violations of human rights committed by people in positions of power.”
That is hardly the signal that the international community has sent.
In fact, the ICC already issued arrest warrants in April 2007 for Ahmad Harun, Sudan's state minister for Humanitarian Affairs, and Ali Kushayb, a former Janjaweed leader.
The Sudanese government has refused to cooperate and arrest the individuals, meaning it is highly unlikely that it will cooperate in extraditing its president. And already, al-Bashir is openly mocking the indictment.
Furthermore, the indictment actually exonerates al-Bashir of the worst accusations. The chief prosecutor in the case, Luis Moreno-Ocampo, requested a more serious charge of genocide as well, but the ICC’s Pre-Trial Chamber dismissed it, apparently concluding there existed no “reasonable grounds to believe” that al-Bashir engaged in genocide.
That should come as no surprise, however, because the ICC is little more than a political institution, not a body equipped to render justice. And the tragedy of Darfur demonstrates the folly of relying upon international bodies to produce anything more than political decisions.
For instance, China, as one of the five permanent members of the U.N. Security Council and one of Sudan’s closest military and economic allies, has prevented the U.N. from taking any meaningful action on Sudan, thus making a charade out of another international institution.
In response to the al-Bashir indictment, Qin Gang, China’s foreign ministry spokesman, said, “China expresses its regret and worry over the arrest warrant for the Sudan president issued by the International Criminal Court,” and “China is opposed to any action that could interfere with the peaceful situation in Darfur and Sudan.”
Jeremy Rabkin, who is a law professor at George Mason Law School and a director at the U.S. Institute for Peace, observed, “This is what happens when serious countries delegate their policy to an unserious institution.” As such, the U.S. has little to gain — and much to lose — by becoming part of another kangaroo court.
Becoming a signatory to the ICC could have a dangerous effect on U.S. policymakers and military personnel who would be subject to ICC prosecution. Furthermore, as the Abu Ghraib incident demonstrated, American authorities prosecute Americans when necessary. We do not need to delegate that responsibility to bureaucrats at The Hague.
The nature of the ICC also makes it more likely that prosecutors will target defendants from free societies like ours at some point.
That is because the U.S., if a signatory, would likely respect an ICC ruling, thus giving the body desperately needed credibility. On the other hand, true war criminals, such as al-Bashir, will simply dismiss ICC decisions.
And, unfortunately, the only effective and just way to deal with such thugs often times is through force. But that is unimaginable to many of the people who feign deep concern about Darfur, as the war in Iraq demonstrated.
Darfur has been the cause that lends itself to bumper stickers, buttons, and secret meetings with the President. While raising awareness or making a statement is a nice gesture, gestures do nothing to address what truly matters: the slaughter of innocent life.
Dealing with that sad reality requires far more than Hollywood stump speeches and empty ICC arrest warrants. Pretending otherwise does nothing for the people of Darfur. And ultimately, if the U.S. joins the ICC, it will do nothing for freedom loving people anywhere.
Brett Joshpe is co-author of “Why You're Wrong About the Right: Behind the Myths: The Surprising Truth About Conservatives” (Simon & Schuster). He is general counsel of The American Civics Exchange.
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