Serious analysts can legitimately debate whether ICC involvement in Sudan will help or hurt prospects for peace in the country. But it becomes far easier to blindly damn the ICC when you distort the rules under which the Court operates.

The ICC can acquire jurisdiction in a country in one of three ways. First, the country in question can be an “ICC country,” a signatory to the 2002 Rome Statute that established the Court. Second, a host government can invite the ICC to begin proceedings in its country. In Uganda, for example, President Yoweri Museveni requsted that the ICC prosecute members of the Lord’s Resistance Army, which had been terrorizing the northern part of his country for over twenty years. Third, if a country is not a party to the ICC and does not request the Court’s involvement, the Security Council can vote to authorize ICC jurisdiction.

David Rivkin, Jr. and Lee Casey, two lawyers writing in The Wall Street Journal op-ed page, acknowledge — albeit with the minimalizing sarcasm of quotation marks — that this last method was the one by which the ICC obtained jurisdiction in Sudan.

It [the ICC] can also follow-up on “referrals” from the U.N. Security Council. In 2005, the council made such a referral with respect to Sudan’s campaign of mass murder in Darfur.

Correct. This was no mere recommendation; it was a formal authorization, and, according to the ICC’s charter, it provided a legitimate means for the Court to operate even in a country that had not signed the Rome Statute and that opposed ICC involvement. Yet Rivkin and Casey backtrack in their very next sentence:

Under international law norms, the ICC can prosecute citizens of signatory states. But it cannot prosecute citizens of nations, such as Sudan, that are not party to the ICC.

The ICC is operating in Sudan. It has been for over three years. The only way for it to suspend its jurisdiction is for the Security Council to authorize it to do so. This leverage should be interpreted as a new opportunity to press for peace, not, as Rivkin and Casey dramatically bemoan, as a “blow” that “takes Darfur’s second-best hope for peace — a diplomatic settlement — off of the table.” The ICC’s action should be seen as a “blow,” but as a blow to the idea of impunity, not to peace negotiations that have not even yet gotten off the ground, let alone on the table.

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