Global Policy Forum

By Michael Abramowitz and Colum Lynch

As his administration draws to a close, President Bush appears to be backing down from his long-held and fierce opposition to the International Criminal Court, an institution the president and his top advisers have rejected as a possible forum for frivolous cases against U.S. military and civilian officials. The shift is related to what may be an even greater imperative for Bush: bringing to justice the perpetrators of what the president has labeled "genocide" in Darfur. Few issues have symbolized the perceived unilateralism of the Bush administration more than the president's hostility toward the ICC. But as the court weighs a formal arrest warrant against Sudanese President Omar Hassan al-Bashir for war crimes, the administration is emerging as an unlikely defender of the court in the face of efforts by Sudan and others to derail the prosecution.

Secretary of State Condoleezza Rice and Bush's special envoy for Sudan, Richard S. Williamson, have made clear to senior Sudanese officials that Bush will resist attempts by African and Islamic countries to push the United Nations to defer prosecution of Bashir. They have signaled that the Bush administration would veto a proposed U.N. Security Council resolution deferring the prosecution by one year unless Sudan dramatically improves its humanitarian practices and takes tangible steps toward peace in Darfur. "It's well known that we're not big supporters of the ICC, but the court is the only game in town right now to bring accountability for the Darfur genocide, and we don't want to let Bashir off the hook quite so easily," said a senior administration official who was not authorized to speak publicly about the issue and so spoke on the condition of anonymity.

Supporters and opponents of the court regard the administration's change as reflecting both a greater flexibility by the administration in Bush's second term and the president's personal investment in the Darfur issue. They also say the administration considers an indictment useful leverage over Bashir, who has frustrated Bush by not delivering on promises to improve conditions in Darfur. "It would appear the Bush administration does see the value in the ICC actually investigating and perhaps ultimately prosecuting atrocities in Darfur," said David J. Scheffer, a Clinton administration ambassador who helped negotiate the treaty establishing the ICC, which the United States agreed to in 2000. Former Bush U.N. ambassador John R. Bolton, a critic of the ICC, said he is "disturbed" by the administration's tacit support for the court's Darfur investigation. "If you allow this to happen, you legitimize the ICC. My preferred policy is to isolate it and hope it will eventually wither," he said.

Opposition to the ICC was an early feature of the Bush administration's foreign policy, and it angered European allies. After Clinton authorized the United States to sign the treaty creating the court near the end of his tenure, Bush made clear that he would not submit it to the Senate for approval and, in 2002, deactivated the U.S. signature. He also tried to pressure countries that are parties to the ICC to agree to immunize U.S. soldiers from potential prosecution. But the administration has been gradually relaxing its approach in the wake of the atrocities in the Darfur region of Sudan, where government-sponsored Arab militias led attacks on civilians, resulting in hundreds of thousands of deaths since 2003. In 2005, after a fierce internal debate, the Bush administration did not veto a U.N. Security Council resolution referring allegations of war crimes in Darfur to the ICC. While the administration still has reservations about the court, located in The Hague, Bush decided that assuring accountability in Darfur trumped concerns about the ICC, administration officials said. In a speech last year, State Department legal adviser John B. Bellinger III opened the possibility that the United States might assist the court in its Darfur investigation -- provided that the help does not conflict with U.S. law or protection of U.S. soldiers abroad.

The issue has come to a head in recent months, with the move in July by the ICC's chief prosecutor, Luis Moreno-Ocampo, to seek a warrant for Bashir's arrest for orchestrating the deaths of hundreds of thousands of people in Darfur. Officials expect the ICC judges to consider the request by the end of this month, but Moreno-Ocampo's move has already spurred Sudan and others to seek a Security Council resolution deferring the prosecution. Sudan has mustered support from African, Arab and Islamic leaders. Humanitarian groups are worried that Sudan could block relief workers from doing their jobs in Darfur, while some diplomats fear that an arrest warrant would end halting efforts to strike a peace deal for that region. "The indictment of President Omar al-Bashir at this point in time will complicate the deployment of [peacekeepers] and the management of the humanitarian crisis in Darfur," said the African Union chairman, President Jakaya Kikwete of Tanzania, in a Sept. 23 speech before the U.N. General Assembly.

British and French officials have traveled to Khartoum to say they are willing to weigh deferment of the prosecution if Sudan meets several conditions. In an interview, Britain's top diplomat for Africa and the United Nations, Mark Malloch Brown, said Sudan would have to make a radical change in policy for the United Nations to even consider stepping in to stop the prosecution. "We're not going to offer them conditions. We're not going to bargain with them," he said. "We look at it as incumbent on them to do something. . . . That couldn't be just nice words. It would have to be a whole set of really bold actions." U.S. diplomats have refused to say they are bargaining over the Bashir indictment, but the issue has come up in recent private conversations between senior U.S. officials and Sudanese leaders. In a meeting in New York, Sudanese Vice President Ali Uthman Muhammad Taha told Rice that "the move by the prosecutor is threatening" momentum toward peace, according to Abdalmahmood Abdalhaleem Mohamad, Sudan's U.N. ambassador. Rice demanded that Sudan hasten the deployment of international peacekeepers, expand access for humanitarian workers and speed up political reconciliation. "You have to show us you are serious," Mohamad quoted Rice as saying. In an interview, Moreno-Ocampo declined to address efforts to strike a deal over Bashir's indictment. He said Bashir was the mastermind of an effort to eliminate more than 2.5 million people in Darfur by having them killed, starved or driven from their homes. "The status quo is not acceptable; this is an ongoing genocide," he said.