[Mb-civic] OP-ED CONTRIBUTOR Court of First Resort By SAMANTHA POWER

[Michael Butler]

 The New York Times
February 10, 2005
OP-ED CONTRIBUTOR
Court of First Resort
By SAMANTHA POWER

Cambridge, Mass.

TEN years ago, I asked Bosnian civilians under siege in Sarajevo where they
would go if they could escape. Most chose one of the sand or pebble beaches
along the Adriatic. Last summer, when I traveled through the Sudanese
province of Darfur, I asked the same question of Sudanese who'd seen their
homes torched, their cattle stolen and their children butchered. The
surprisingly common answer, whether from refugees wandering the Sahara, or
from farmers who had never had electricity or running water, was this: "The
Hague." They had heard there was an international court there, and they
wanted to go testify.

I didn't have the heart to tell them that their attackers couldn't be tried
at the International Criminal Court because Sudan was not a party to it and
because the United States, even though it was Khartoum's fiercest critic,
was likely to block an investigation by the court.

In late January, a United Nations commission issued its findings on Darfur,
where more than 200,000 people have been killed. Much has been made about
the commission's refusal to describe the atrocities by government-backed
militias as genocide. But more striking was the commission's authoritative
documentation of some of the worst horrors of the last half-century:
violations "without any military justification" that "no doubt constitute
large-scale war crimes." In addition, the team delivered a sealed list with
the names of 51 Sudanese suspected of war crimes and recommended just what
the Darfurians had been urging all along: investigation and prosecution in
The Hague.

The Bush administration has been more forthright than any of the United
Nations' 191 member states in denouncing the atrocities in Sudan - a fact
that should shame European nations that pride themselves on their human
rights pedigrees. The United States was the first to characterize the
violence as genocide and the first, way back in June, to name potential
perpetrators and call for punishment. It has also dismissed offers by the
Sudanese government to conduct the trials at home, rightly recognizing that
Khartoum is unlikely to prosecute crimes that it has ordered and committed.

But the Bush administration can't decide what it dislikes more: genocide or
the International Criminal Court, which aims to punish it. Administration
officials have missed no opportunity to undermine the court. During
President Bush's first term, the United States suspended military aid to
more than 20 countries that refused to shield Americans from potential
prosecution, including Mali (a fledging democracy), Ecuador (a partner in
drug interdiction efforts), and Croatia (a fragile government trying to stem
a nationalist tide).

In one of its most astounding moves, the administration teamed up with
Republican lawmakers in August 2002 to pass a law that includes a measure
known colloquially as the "Hague invasion clause," which authorizes American
troops to use "all means necessary and appropriate" to liberate American
servicemen should they ever be imprisoned. That's not exactly the kind of
diplomacy that will, as Secretary of State Condoleezza Rice promised on the
eve of her trip to Europe, join the United States and its allies "around a
common agenda for the next several years, one that is firmly rooted in our
values, our shared values."

Since coming into force in July 2002, has the court done anything to justify
the administration's fears that Americans will be hauled before an
"unaccountable" tribunal? For example, has its chief prosecutor, Luis Moreno
Ocampo, begun investigating the torture and murder carried out by American
soldiers and contractors in Iraq or Guantánamo Bay? No. Mr. Moreno Ocampo
has explained that these crimes don't fall within his jurisdiction.

Instead, working with Christine Chung, formerly a top federal prosecutor in
New York, Mr. Moreno Ocampo has been busy building complex cases against
militia leaders in Congo and against the Lord's Resistance Army in Uganda,
which the State Department has branded a terrorist group. Mr. Moreno Ocampo
took up these cases not on his own initiative, but because Congo and Uganda
asked him to. And now, although Mr. Moreno Ocampo has the funds and the
personnel to investigate the horrors in Darfur, he cannot act unless the
United Nations Security Council tells him to.

But the United States so mistrusts the International Criminal Court that
President Bush has instead proposed that the African Union and the United
Nations create a Sudan tribunal based at the war-crimes court run by the
United Nations in Tanzania. "We don't want to be party to legitimizing the
I.C.C.," Pierre-Richard Prosper, the United States ambassador for war crimes
issues, said in late January. That's an about-face from the American stance
in 2002, when Mr. Prosper criticized the very same United Nations ad hoc
tribunals for Rwanda and the former Yugoslavia that he now hails. Citing
"problems that challenge the integrity of the process," like a lack of
professionalism among staff, Mr. Prosper demanded that the interminable
proceedings at those courts be wrapped up by 2008, regardless of who was
left at large. Justice at these courts, he said, "has been costly, has
lacked efficiency, has been too slow, and has been too removed from the
everyday experience of the people and the victims."

Temporary courts suffer other disadvantages next to the permanent
International Criminal Court. Because their mandates are finite, they tend
to rush indictments and arrests, disregarding their potentially
destabilizing effects on societies still reeling from conflict. The
permanent court, by contrast, can time its arrests to advance both justice
and peace.

Moreover, creating a court from scratch takes months, or even years. A new
statute would need to be devised, staff members and judges would need to be
recruited, and the African Union, which has never before overseen criminal
trials, would need a crash course.

The ad hoc court could cost as much as $150 million annually. By contrast,
the supposedly bloated international court, which is already investigating
multiple crises simultaneously, will cost roughly $87 million in 2005.
Couldn't that same $150 million be better spent on arming and transporting
African Union peacekeepers into Darfur to prevent the massacres from being
committed in the first place?

Skeptics say that international courts will never deter determined warlords.
Musa Hilal, the coordinator of the deadly Janjaweed militia in Darfur, gave
me a very different impression when I met with him soon after the Bush
administration had named him as a potential suspect. He had left Darfur and
was living in Khartoum, courting journalists in the hopes of improving his
reputation. Almost as soon as I sat down with him, he began his defense.
Like his victims, he had only one place on his mind. "I do not belong at the
Hague," he said. Surely President Bush doesn't want to find himself on the
side of someone his administration considers a killer.

Samantha Power, a lecturer at the Kennedy School of Government at Harvard,
is the author of "A Problem From Hell: America and the Age of Genocide,"
which won the 2003 Pulitzer Prize for general nonfiction.

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