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Don’t Fear the International Criminal Court

Washington’s worst fear was that the International Criminal Court would have a fierce, activist, anti-American prosecutor who would miss no opportunity to slam the United States. But ICC chief prosecutor Luis Moreno-Ocampo is nothing of the sort. Now’s the time for the Bush administration to step up and help the ICC investigate the real criminals hiding in Sudan.

On February 10, in a little-noticed decision, the International Criminal Courts (ICC) chief prosecutor announced that he would not investigate alleged crimes committed by American or British troops in Iraq. The nightmare of American officialsan ICC prosecutor who is aggressive, political, and anti-Americanhas not yet come to pass. So its a good moment for Bush administration officials to take a pragmatic look at an institution they love to hate. They may just find that the ICC can serve some important American interests.

Over the course of the last three years, chief prosecutor Luis Moreno-Ocampo had received more than 240 requests from individuals and NGOs to investigate the conduct of coalition forces in Iraq. He dispatched them all with admirable restraint. Because neither Iraq nor the United States is party to the ICC, he decided that he had no jurisdiction to investigate actions of American troops. He also rejected the suggestion that he should investigate British officials or troops as accessories to alleged American crimes, a possibility that could have meant investigating American actions in places such as Abu Ghraib. Although he conceded that a considerable number of civilians died or were injured during the war, he found no evidence that coalition governments intentionally attacked civilians or used force against military targets resulting in excessive civilian death or injury (a war crime under the ICCs Rome Statute). The frequent use of precision-guided munitions by the British, he pointed out, suggested an effort to minimize civilian casualties.

Moreno-Ocampos review wasnt a whitewash. He found a reasonable basis to believe that some coalition forces had engaged in the willful killing of civilians and inhumane treatment of detainees. But this was hardly a surprise given that the United States and UK have acknowledged these crimes and have been prosecuting perpetrators. Importantly, Moreno-Ocampo decided that the extent of the crimes was not grave enough to merit investigation by the Court, especially compared to the crimes involved in his current investigations related to Sudan, Uganda and the Democratic Republic of the Congo.

This kind of triage may seem callous, but it is entirely consistent with the prosecutors mandate, which limits him to the gravest criminal conduct. The ICC was never meant to replace national justice systems. Instead, it is a last resort for heinous crimes that states cannot or will not prosecute. By acting in a restrained way in response to serious and politically charged allegations, Moreno-Ocampo has shown that he understands the proper and very limited role of the ICC.

For the United States, the task now is to encourage Moreno-Ocampos restraint and help him set the tone for future ICC prosecutors without embracing an international court that still lacks important checks and balances. The administration should make clear that where U.S. interests match the ICCs, it will work with prosecutors who are serious and professional. And a perfect case for doing so already exists. In keeping with President Bushs new focus on Sudan, the administration should build on its decision last spring to allow the United Nations Security Council to refer the atrocities in Darfur to the ICC prosecutor. The United States, which characterized the atrocities as genocide in 2004, decided to endorse every step possible to stop the crimes, even if it meant tacit acceptance of an ICC role. Now, the administration should go further.

Specifically, the Bush Administration should offer to help Moreno-Ocampos team develop the kind of evidence necessary to identify and try the most senior officials responsible for the crimes in Darfur. This cooperation may involve sharing sensitive information, but with adequate protections, the United States should be able to provide such support, as it has for over a decade to the international tribunals for the former Yugoslavia and Rwanda.

The administration should also apply diplomatic and economic pressure on the Sudanese government to encourage it to give the ICCs investigators free rein in the region, including the ability to interview Sudanese political and military officials without constraint. Any future peacekeeping force in Sudan should have, as part of its mandate, the authority to protect and assist ICC investigations.

Nobody believes that accountability alone will stop the terror in Darfur. But unless leaders in Khartoum understand that the U.S. commitment to prevent these crimes trumps even its opposition to the International Criminal Court, they are unlikely to face the consequences of their continued atrocities. Critics may argue that this cooperation would undermine U.S. opposition to the ICC. But that kind of cynical approach has no place in an administration that appears to value bringing an end to the Darfur genocide. The United States doesnt have to join the ICC or even like it. But it shouldnt stop the court from helping America achieve its own goals.

David Kaye is a law professor at the University of California Irvine and the U.N. special rapporteur on freedom of opinion and expression. Twitter: @davidakaye

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