Thursday, July 15, 2010

The Not-Long-Enough Arm of the Law

Earlier this week, the International Criminal Court (ICC) issued its second arrest warrant for the President of Sudan, Omar al-Bashir, for war crimes and crimes against humanity committed on his watch in the course of the ongoing conflict in Darfur. Included in the charges against Bashir is the crime of genocide, which the ICC claims it has "reasonable grounds to believe him responsible" for committing against the Fur, Masalit and Zaghawa ethnic groups in Sudan. (If you're interested to know what criteria the ICC uses in its execution of warrants for crimes proscribed by the Rome Statute, you can download a .pdf explanation of the "Elements of Crimes.") President Bashir is the first ever sitting head-of-state to be indicted by the ICC, and the first to be charged with genocide. It is alleged that he hoped to evade the ICC warrant by holding and winning a "legitimate" presidential election, though many question the legitimacy of the vote that resulted in his landslide victory in April.

The ICC will deliver to Sudan-- or has already delivered, it's unclear-- the new warrant for Bashir, which Sudan will doubtlessly ignore. Like the United States, Sudan is a signatory to the Rome Statute, but never ratified it. According to the law of treaties, a state that has signed but not ratified a treaty is obliged to refrain from "acts that would defeat the object and purpose of the treaty." However, these obligations no longer hold if the state later makes it clear that it has no intention to become a party to the treaty. Three states-- the United States, Israel, and Sudan-- have done exactly this, effectively "unsigning" the Rome Statute and consequently signalling that they have no legal obligations arising from their original signatures on the statute. I want to be very careful about drawing too-close parallels between the United States, Israel and Sudan on this issue, but the indictment of President Bashir certainly draws attention to the precarious relationship between sitting heads of state and an International Criminal Court that might bring them to account for atrocities committed by or in their countries.

Consider the parallels in the following:

Obviously, Sudan's ratification of the Rome Statute would obligate it to turn over Bashir to the Hague. The Darfur conflict, during which most of the crimes Bashir is accused with were committed, began in February 2003, roughly three years after Sudan initially signed the treaty establishing the ICC. So, it is difficult to imagine noble reasons for Sudan's subsequent reluctance to ratify the Rome Statute. Clearly, this is an attempt to secure impugnity for its head of state and to avoid the investigation and prosecution of human rights violations committed under his administration.

The United States' "unsigning" was performed by George W. Bush in 2002-- again, about two years after its original signing (by Bill Clinton), but more importantly after the September 11 attacks and the beginning of the U.S. "war on terror." Coincidental with Bush's nullification of the U.S.'s signature to the treaty, also in 2002, Congress passed the American Servicemember's Protection Act (ASPA), which contained a number of provisions, including prohibitions on the U.S. providing military aid to countries which had ratified the treaty establishing the court (exceptions granted), and permitting the President to authorize military force to free any U.S. military personnel held by the court. (The ASPA was dubbed by its opponents the "Hague Invasion Act.") Also in 2002, the United States threatened to veto the renewal of all United Nations peacekeeping missions unless its troops were granted immunity from prosecution by the Court, arguably in an attempt to intimidate countries that ratified (or intended to ratify) the treaty for the ICC. In a compromise move, the United Nations Security Council passed Resolution 1422, granting immunity to personnel from ICC non-States Parties involved in United Nations established or authorized missions for a renewable twelve-month period. This was renewed for twelve months in 2003, but the Security Council refused to renew the exemption again in 2004, after pictures emerged of US troops abusing Iraqi prisoners in Abu Ghraib, and the US withdrew its demand.

There is, of course, much debate over whether or not President George W. Bush should be held responsible for war crimes and crimes against humanity committed under (or at the behest of) his administration. But it is abundantly clear that, even if that administration is not in the end responsible for the alleged violations, it is at the very least primarily concerned with securing its own impugnity against prosecution. Much like, well, Sudanese President Bashir.

The interesting question is: why did the ICC issue a warrant for Bashir and not for Bush (or Israeli President Peres)? Arguably, the evidence against the Bush administration for complicity in human rights violations is greater, more easily accessible, more widespread and more universally accepted as damning. The African Union (AU) and many other international organizations have accused the ICC of unfairly "targeting" Africa, a concern that has received far too little serious consideration. At any rate, it will be interesting to see how this case against Bashir proceeds, and whether or not it is able to generate enough support for the ICC to give the Rome Statute some real teeth.


Dr. Trott said...

It seems to me that this is an obvious case of the exception of the sovereign and the weakness of the UN and the ICC. With no enforcement arm, there is no way the international community can successfully challenge the sovereignty of any country within its own borders except by acts of war (in fact, violating another country's borders is itself taken to be an act of aggression). Of course Sudan and the United States except themselves from this treaty. It is almost a signal of their intent to violate it or to feel unrestricted by it that they have expressly rejected it even after approving it. I'm interested in the initial signing -- why did each of these states sign but then renege? Was it a ruse to encourage other states to agree to actions that would somehow serve Sudan, Israel and the United States? Is it possible to justify actions that appear structurally the same (those of Israel and Sudan) by virtue of the reasons behind them (Israel claims the need to protect itself; I don't know what Sudan claims)? Even if all of these states ratified the treaty or agreed to all international law, we won't have overcome the problem of the exception of the sovereign, we would only have kicked the problem up to another level. So I wonder what it is we are looking for: consistency? Do we want the US and Israel to recognize that they are as culpable to these kinds of crimes as Sudan? Can you have a sovereign state that isn't? Or at least if it isn't, it only is not by virtue of it's good will not by any necessary restriction on it. Perhaps we've just been believing in the US's good will too long. But new treaties won't change things, will they?

DOCTOR J said...

@Trott: Whoa, Bessie! Too many questions all in one comment! But here goes...

I think we have to remember that the United States, Sudan and Israel are all (at least ostensibly) "democracies," so it is the State that is sovereign and not the "President." (I know, I know, this all gets a bit murky once we enter into things like the "state of exception/emergency" but you know what I mean.) A good democracy ought to hold its elected leader accountable for the mismanagement of the state. The problem, of course, arises when we have to consider whether or not handing the prosecution of that mismanagement over to an international authority (like the ICC) violates the sovereignty of the democratic state. You won't be surprised to learn that I don't think it does. I don't see anything in the Rome Statute (or the ICC) that substantively threatens United States' sovereignty.

To the question "why did we sign in the first place?"... well, that's a bit more complicated. As you know, the President of the U.S. can sign whatever he wants, but in order for a treaty to be ratified, it has to win the support of a majority of Congress. So, in our case, Bill Clinton signed the Rome Statute, but Congress refused to ratify it. (That was a so-called "bipartisan" opposition, btw.) I'm not sure that technically counts as a "ruse," but it's pretty close.

And to your last battery of questions I would say: YES, it WOULD make a difference if we signed the treaty. For one thing, it would mean that accountability for international crimes are no longer a matter of "good will" on the part of sovereign states, but rather a matter of LAW. The old "isolationist" position is getting a little long in the tooth in these days of globalization, non-state actors, multi-national corporations and the like. The truly deplorable thing, I think, is that States like Israel and the U.S. still have the money and the might to pretend like it's not, while African states like Sudan are still treated like the misbehaving child at our birthday party.

DOCTOR J said...

I should have added:

But, of course, you know all this already, Dr. Trott. ;-)

Lorenzo said...

There is the small detail that some aspects of the treaty establishing the ICC contradicted the US declaration of independence. The treaty claims coverage over states that have not signed it. A remarkable claim, when one thinks about it.

It is an instructive exercise to look down which countries have not signed it. They add up to a majority of the world's population.

There is also the small detail about exactly how the "law" the ICC is supposed to enforce is established.

(None of this excludes other considerations the Bush Administration may or may not have had.)