Global Policy Forum

When the United Nations released its report on the atrocities in Sudan's western region of Darfur Monday, its legal minds absolved the regime in Khartoum of "genocide" by distinguishing between massacres with and without the intention to destroy a population group. Khartoum's assault on the black Muslims of Darfur was said to be the latter.

We doubt this legal hair-splitting will console the people of Darfur, where Sudan's support for Arab militias has already killed at least 70,000 and forced two million people to flee their homes. Were it not for the assistance of international aid donors, chiefly American, the death toll would be much higher.

But it turns out that these semantics do matter in the netherworld of diplomacy that is the U.N. Those propagating "multilateralism" always want to ensure that they act in accordance with "international law." No matter how morally repugnant a policy actually is, as long as it conforms with the consensus interpretation of an international treaty, the multilateralists can still claim the moral high ground.

This brings us to the Genocide Convention, which in theory obliges signatories to take action to stop genocides. Ten years ago, the Clinton Administration -- whose departure multilateralists around the world still bemoan -- explicitly forbade its staff to use the "G" word in reference to Rwanda. Why? Simply so that when they didn't lift a finger to stop the mass murder there they didn't formally violate the Genocide Convention or international law.

The Bush Administration, which has been nearly alone in fighting for tougher Security Council action against Sudan, no doubt hoped that its branding last year of the atrocities in Darfur as genocide would rally the "international community." But any hope for sanctions or an arms embargo has so far been blocked by China and Russia, respectively Sudan's biggest oil investor and arms supplier. France, whose Total oil company sits on the most promising Sudanese oil field, also has no appetite for sanctions.

Against the opposition of these veto-wielding U.N. Security Council members, no "legal" action to stop the horror can be taken. More important, it remains absolutely within international law to continue drilling for oil in Sudan, thus filling the war chests of Khartoum's butchers, who just the other week bombed and killed or wounded 100 civilians with Russian-made Antonov planes.

But Europe now has an idea. Led by France, it is backing a recommendation in Monday's U.N. report that the matter be referred to the International Criminal Court, knowing full well that the ICC is anathema to the Bush Administration. The U.S. opposed the treaty that created the ICC because it didn't trust the U.N. with the sweeping powers the court would have, a distrust that seems justified by Paul Volcker's interim report on the Oil for Food scandal.

The U.N. recommendation cleverly, or we should say cynically, puts the U.S. in the uncomfortable situation of either giving legitimacy to a court it rejects or siding with a country like China against the referral to the ICC -- and thus standing accused of denying justice to the Darfurian victims. All in all, a classic bait and switch.

Suddenly, this brouhaha about which court should try Sudanese war criminals has overshadowed the far more important matter of stopping their crimes. Only in the U.N. do countries believe they can get moral credit for deploring crimes that they actively refuse to do anything about. And while no country has done more than the U.S. to stop the depredations against Darfur, the media have suddenly changed the subject away from sanctions against Sudan and focused on the Bush Administration's "unilateralist" rejection of the ICC. A columnist for the New York Times dined out on this French bait only yesterday.

The U.S. properly wants war crime tribunals that are limited in scope, the way those in the Hague focused on the Balkans. And in the case of Darfur, the U.S. is proposing a temporary that U.N. African Union court be set up in Arusha, Tanzania, to deal with Sudanese leaders -- and it would probably foot most of the bill.

But of course those now referring the matter to the ICC have no intention of ever bringing anyone in Sudan to justice. Their goal is to divert attention from Sudan and the suffering in Darfur and embarrass the U.S. instead. Only in the U.N. could anyone imagine actually getting away with this.