Published on The Economist, from its print edition, Aug 13th 2009.
The chasm is still too wide between noble Swiss ideas and the hard reality of locations where war is hell.
WALK the calm, well-heeled streets of Geneva and there seems little to connect this metropolis in neutral Switzerland with the genocidal slaughter in Rwanda and the rape camps of Bosnia in the 1990s, or the appalling violence lately inflicted on civilians caught up in fighting in Darfur, Chad or eastern Congo. Yet decisions taken in Geneva do have an effect, both legal and humanitarian, on people in benighted places—and the world would be much happier if the effect was far greater.
The city is the UN’s humanitarian hub, headquarters to both its refugee and human-rights agencies. More memorably, though, it lends its name to a clutch of conventions, adopted six decades ago this month, initially with the horrors of two world wars in mind. Those agreements still form a bedrock for the laws of war and the protection of non-combatants …
… Some of the countries that signed up to the ICC appear to be experiencing buyers’ remorse. The African Union (AU) was the first regional organisation to talk of moving from non-interference (the claim that governments can do what they like within their own borders) to non-indifference to such crimes. African governments make up about a third of those that have ratified the ICC’s Rome statutes, which oblige them to help the court track down those it has charged. Yet a recent AU summit voted to end co-operation with the court over its indictment of Sudan’s president, Omar al-Bashir, for war crimes and crimes against humanity in Darfur (a charge of genocide was dropped until ICC pre-trial judges can be sure the evidence warrants it).
The AU vote has been deplored by a number of African governments and by a long list of African human-rights groups. Critics of the court argue it is biased: all four cases it has taken on so far are from Africa. But of the four, three were referred by the governments themselves (Uganda, Chad and the Central African Republic), and the fourth, Sudan, was referred by the Security Council.
The backlash against the court is unlikely to help the battle to end impunity. Nor will the antics of the 47-member UN Human Rights Council (an inter-governmental body also based in Geneva that is nonetheless separate from the office headed by the UN’s commissioner for human rights). Earlier this year a majority on the council gave Sri Lanka a pat on the back despite appalling loss of life among civilians caught up in the defeat of the Tamil Tigers. Not long before, it had lambasted Israel for its war in Gaza, mandating a fact-finding commission to look into what it said were Israel’s “war crimes”, while saying nothing at all about the actions of Hamas. The mission, led by Richard Goldstone, a prominent international lawyer, who reportedly sees his mandate in a less one-sided fashion, is due to report in September.
Meanwhile asking the ICC to take on other international crimes, such as terrorism and piracy, looks a non-starter. There is no agreed definition of terrorism beyond the “we know it when we see it” rule that lets one man’s terrorist off the hook as another’s freedom-fighter. In any case, the ICC has yet to pin down the fourth crime mentioned in its statute alongside war crimes, crimes against humanity and genocide: the crime of “aggression”.
At a review conference next year, some will press for this charge to be added to the court’s detailed sheet of punishable crimes. That would be premature. Informal discussions among the signatories to the court and some interested outsiders have produced tentative agreement on a definition of aggression. China and Russia have joined the talks, though they are not signatories. The United States, another non-signer, has held aloof, though the Obama administration could yet decide to take part. Trickiest of all, however, will be to figure out a way for the court to finger an alleged culprit without treading on the prerogatives of the UN Security Council, which is supposed to decide on all matters of war and peace.
Eventually a mechanism may be agreed that involves the council. America, China and Russia are unlikely to join the court until that happens and even then may not. The Geneva conventions are taking a battering, and the victims of war are still getting short shrift. But count on the big powers to hold their own ground. (full long text).