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Congress Reverses Bush-era Policy on the International Criminal Court

Don Kraus of Citizens for Global Solutions brings to my attention news that the so-called "Nethercutt Amendment" was excluded from the recently passed Omnibus appropriations bill. What is the Nethercutt Amendment and why should we care? In 2004 George Nethercutt (left), a Republican member of congress from Washington State, inserted a provision into the State Department/Foreign Operations appropriations bill stating that countries that cooperate with the International Criminal Court but do not sign so-called bi-lateral immunity agreements with the United States would not be eligible for U.S. foreign assistance funds. So, for example, if an ICC member like Peru declined to enter into one of these bi-lateral immunity agreements with the United States, then Peru would lose money earmarked for, say, efforts to reduce coca production and fight drug trafficking. A number of America's allies declined to enter into these side agreements because they believed their obligations to the ICC prevented them from doing so. They were punished accordingly. Meanwhile, the administration, too, had chose between its opposition to the court and other -- arguably more important -- diplomatic and foreign policy priorities. I wrote about the Nethercutt Amendment a full five years ago in the American Prospect. I argued then that this was pretty dumb public policy. And now, via Don, I'm glad to report that it has ended. From Don Kraus:
Thanks in large part to the work of House Foreign Operations and State Sub-committee chair Nita Lowey (D-NY) and her staff, the language has been removed from appropriations bill. Although her counterpart in the Senate, Patrick Leahy (D-VT) has successfully kept this language off of the Senate bill for many years, House Republican opposition ensured it remained in the final bill that went to President Bush. With the removal of the Nethercutt language, the [bi-lateral immunity campaign] is now officially over.
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Engage with the ICC!

David Kaye, a former lawyer in the Clinton and Bush administrations, provides some sensible reasoning on why the United States should join the International Criminal Court. In addition to all the helpful information Washington could have provided in the lead-up to the Bashir indictment -- and its tumultuous after-effects -- Kaye writes that the United States risks being left on the sidelines when it comes to shaping international law.
Closer engagement also would allow the U.S. to help shape policy and legal developments in ways that meet its concerns. Today, we have little ability to influence the court's thinking. As a consequence, many basic principles of international law are being developed without U.S. input.
If that doesn't sound scary enough (okay, it's not exactly fear-inducing), then Kaye brings up a dangerous eventuality that may hit closer to home for many U.S. lawmakers.
Not all the action is in the courtroom either. Parties to the ICC are considering whether and how to amend the Rome Statute to include the crime of aggression -- the unlawful use of military force. Our ability to shape the court's approach to this crime is limited unless we take prompt steps to play an active role.
The unspoken reference here is obviously to Iraq. Regardless of what American legislators think of the war in Iraq, or of future use of preventive warfare, none of them want the United States to be brought to court over it. Rather than merely provide fodder for those who instinctively contend that the ICC is hopelessly heading in the wrong direction, this development is, as Kaye suggests, all the more reason for the U.S. to join the Court. The only way to convey one's interests, as we seem to repeat ad nauseam here at UN Dispatch, is by showing up and participating.
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Throughout the day we will keep a running tally of international responses to today's announcement that the International Criminal Court has issued an arrest warrant for Sudanese President Omar al Bashir. Posting to the Enough Project's blog Rebecca Bracato captures a Q and A with State Department spokesperson Gordon Dugiod, who struggles to explain how the United States can support ICC action against Sudan when the United States is not itself a member of the ICC. Doctors Without Borders takes another hit in Sudan as Khartoum orders the French section of MSF to back its bags. "The decision to expel the French section of MSF, brutal and sudden, follows the expulsion yesterday of the organization’s Dutch section. MSF is appalled by this order, which clearly holds the needs of the population of Darfur hostage to political and judicial agendas. The organization protests the order in the strongest of terms and appeals to the government to repeal these decisions and allow MSF to resume independent and impartial humanitarian assistance immediately."
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Karadzic’s Not Guilty Non-Plea

The big news out of The Hague will come tomorrow, but today the indicted Bosnian Serb war criminal (and noted soda-drinker) Radovan Karadzic pled not guilty had the presiding judge enter a plea of not guilty for him. Karadzic, borrowing a trick from his former boss Slobodan Milosevic, is representing himself, and, despite having some sound legal minds advising him, seems determined to use the opportunity to rail against the court and generally sow disorder and disruption.
"I'm not going to enter a plea at all. This tribunal does not have the right to try me," Karadzic said, raising his voice as he faced the courtroom alone, flanked by two guards.
When the judge pressed him on whether this meant he was pleading not guilty, Karadzic began "Yes, but...," and the judge cut him off, smartly wanting to avoid setting a precedent for antics that could detract from the proceedings' effectiveness. This is a good sign that the judge, the wonderfully accented Iain Bonomy, will hopefully be able to keep the trial on track and minimize the off-topic ranting that damaged Milosevic's trial. One can only imagine what Bashir would have to say if he ever stands trial...
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Warrants Aren’t for Eating

While ICC judges have been chewing on whether or not to issue an indictment for Sudan's president, as requested by the Court's Chief Prosecutor, for over six months, one thing they will not be chewing, when their decision comes out tomorrow, is the warrant itself. President Bashir politely made such a request today:
"They will issue their decision tomorrow ... this coming decision, they can prepare right now: they can eat it (the warrant)," Bashir told a crowd of cheering supporters who lit and stamped on an effigy of ICC prosecutor Luis Moreno Ocampo.
Sudanese government officials are no strangers to provocative bluster, even if it comes out nonsensical or at odds with their intentions. When security chief Salah Gosh warned that, if an indictment came down, the ruling party would renege on its transformation from Islamic extremists to "moderate and civilized" leaders -- inadvertently offending, as Michael Kleinman wittily points out, potential attendees of the next "jihadist disco night" that Sudan may want to host. And of course, top presidential adviser (and potential rival for power, should Sudan's cabal lean toward dumping Bashir) Nafie Ali Nafie infamously told former U.S. Secretary of State to "lick her elbow" when she took a hard line on Sudan. The meal will be served tomorrow morning in The Hague. And elbows off the table, please. (image from flickr user Dia™ under a Creative Commons license)
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Lebanese Tribunal to Begin, With Three Suspects Fewer

Mixed news for the UN tribunal designed to investigate the assassination four years ago of former Lebanese premier Rafik Hariri. On the one hand, the tribunal's work is scheduled to begin in The Hague on Sunday, a welcome milestone for a process that some feared would never get underway. On the other hand, though, three of the seven suspects held in Lebanese jails were summarily released by a judge yesterday, a mysterious development to say the least, given the proximity of the tribunal's start date. The judge did not have to give a reason for his decision, which is perhaps discomfiting but also perhaps understandable because of various legal restrictions, et cetera. The timing of the release, though, coupled with the celebrations of the news in a reputedly "Islamic fundamentalist stronghold" to which the three civilian suspects returned, do add a certain questionable aura to the proceedings. This is not to say that there is reason for skepticism about the tribunal itself. It is rigorously supported by many Lebanese, and its staffing and funding is split relatively evenly between international and Lebanese sources. The same questions still loom, though: if the chain of suspects does in fact lead up to Syrian president Bashar al-Assad, how will the tribunal handle this tricky issue? I imagine the folks working on this one are relieved that the ICC's potential indictment of Sudanese president Bashir is going to come down first. (image of Rafik Hariri, 2003)
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What the Warrant Means

Read this excellent and very thorough report, hot off the presses from the Enough Project. The bottom line: the warrant has the potential to be a real game changer in Sudanese politics by strengthening more moderate elements. The paper explains in great detail why this is so, and advises the United States and the international community on what it must do to seize this opportunity.
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Why the ICC Leak?

I woke this morning to find an email from the International Criminal Court's press shop vigorously denying that ICC judges had made a decision to issue the arrest warrant for Sudanese president Omar al Bashir. If the ICC is not ready to make the announcement regarding Bashir, why would officials at the United Nations -- who were the sources for the New York Times scoop--reveal this info? The UN is pretty leaky place in general. Hundreds of member states have hundreds of different agendas, which sometimes differ from the UN secretariat. There is a very real chance that a diplomat in the know couldn't hold his or her tongue. But, it's also no secret that a number of UN officials are frustrated with the ICC's pursuit of Bashir--not on principal, but because UN officials worry that the arrest warrant could disrupt peace efforts and result in attacks on UN personnel in Sudan. Don't get me wrong, as a blogger and journalist I'm very pro-leak. I'm just curious as to why "officials at the UN" (which could mean secretariat staff or member state diplomats) would want to jump the gun on this? UPDATE: On further reading, it seems that the NYT item that broke this story was datelined The Hague, not United Nations. This would suggest that the leak came from ICC, not UN sources, which adds another layer of intrigue.
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Obama, Darfur and the ICC

I have a column in the American Prospect online today arguing that the forthcoming International Criminal Court arrest warrant for Sudanese President Omar al Bashir gives the Obama administration an opportunity for a diplomatic breakthrough on Darfur.
In the coming weeks, Darfur will reach yet another crisis point when the International Criminal Court (ICC) issues an arrest warrant for President Omar al Bashir of Sudan. When this happens, President Bashir has all but promised retaliation -- against United Nations personnel in Sudan, against Darfuris, and against southern Sudanese separatists. This much we know. What is still unclear is how the Obama administration intends to respond. Susan Rice, the new United States ambassador to the United Nations, once aptly described the previous administration's Darfur policy as "bluster and retreat," "bluster" for the lip service paid to the issue, and "retreat" for never following up its tough rhetoric with meaningful political, diplomatic, or even military action. Now, with Rice at the U.N. and Hillary Clinton at the helm in Foggy Bottom, one would suspect bumbling Bush-era policies would come to an end. Both women have been strong advocates for a more robust approach to the Darfur crisis. Clinton was an early sponsor of Darfur legislation in the Senate. Rice has written on numerous occasions about the issue, at one point even endorsing U.S. airstrikes. Still, the forthcoming ICC arrest warrant will pose an early test for the Obama administration. And if approached with the kind of deft diplomatic touch that the previous administration clearly lacked, the prospects for peace in Darfur may suddenly become brighter.
Read the rest!