Voice

John Yoo parties like it's 1998

In the Wall Street Journal, former Bush administration lawyer John Yoo reviews recent books by David Scheffer and William Shawcross and in so doing showcases his views on the international justice movement. It's a frustrating read. Yoo offers up a fairly conventional conservative take on the international justice movement. He sees it as deeply misguided, dangerously unchecked, and quite likely to be anti-American. Stopping atrocities, he insists, is fundamentally the business of soldiers with guns (probably American soldiers) not lawyers. Anyone who has read John Bolton's numerous critiques of the International Criminal Court knows the basic arguments.

They're not all bad arguments of course. In the face of ongoing mass atrocities, there's no doubt that intervention will be essential. Anyone who argues that indictments alone will do the trick is delusional.  But very few people argue that (and some of the ICC's most ardent supporters are also loud proponents of the "responsibility to protect" doctrine).  The question is not whether international justice mechanisms obviate the need for force but whether they can, on the margins, tilt the incentives of those in power and help provide a modicum of justice in the aftermath.

Perhaps the most frustrating element of Yoo's jeremiad is that it's written as if the last decade of the ICC's existence did not occur. Save for a stray reference to Libya, this piece could have appeared in 1998, when everyone was hotly debating the merits of an ICC. Yoo has nothing to say about the ICC's investigations and indictments of the LRA's top killers, the bloody regime in Khartoum, or the rampaging militia leaders in eastern Congo. Would he rather that those investigations had not happened? Nor does he acknowledge that, contrary to the fears of conservatives, the court has not stepped on the toes of  major powers, including the United States. The ICC has never opened a formal investigation into Iraq or Afghanistan. It has temporized on Palestine. In short, this is not the court that Bolton and Yoo feared.

There's no doubt that the battle over the ICC in the late 1990s was a heady time for national security conservatives. But at some point soon they are going to have to stop reliving the glory days and start reckoning with the work of an institution that exists and has a real record to be debated.

The Multilateralist

Mr. Bashir goes to Libya

Sudanese president and ICC indictee, Omar al-Bashir, has arrived in Libya for what news reports are saying will be a two-day visit. At one level, the visit is utterly unsurprising. Sudan is a regional power, and Bashir's government apparently provided cash and weapons to the then rebels as they battled Moammar Gaddafi's forces. Geopolitics--and simple good manners--dictate that Libya's new rulers should welcome Bashir.

But viewed through the prism of international law and human rights, the visit is a rude jolt. How could a regime that just ousted a brutal dictator indicted by the International Criminal Court welcome another of his ilk? For the ICC itself, the development must be disturbing. Libya is, in theory at least, cooperating with the court to arrange a trial of Saif al-Gaddafi,who was indicted by the ICC but remains in Libyan custody. The ICC's judges are at this moment considering whether Libya is able to give Saif a decent trial and will presumably rule on that vexed question in the near future. While not directly relevant to Libya's ability to try Saif, the decision to host Bashir can only sour the judges' mood toward Libya's new regime.

It's also at least possible that Libya might be violating UN Security Council resolutions by hosting Bashir. Libya is not an ICC member state and so does not have a general legal obligation to honor ICC arrest warrants. But Resolution 1970, which referred the Libya situation to the court back in February, compelled Libya's authorities to "cooperate fully" with the court. That order obviously came in the context of the ICC's investigation of abuses in Libya, but it's arguable that the resolution creates an obligation to snag other indictees on Libyan territory.

The Bashir visit has generated the expected anger from the human rights community. Yesterday, Human Rights Watch president Ken Roth chastised Libya for its decision: "[It's] disappointing that beneficiaries of ICC involvement would receive suspect." It was a revealing reaction. Roth apparently believes that Libya's new government benefited directly from the ICC's involvement in Libya and should now act accordingly. But how precisely did the ICC indictments help in the battle against Gaddafi? One can speculate that they helped isolate and discredit the regime; but that's only speculation, and other, less rosy, theories are also plausible. Even if one grants that the ICC's role was helpful to the rebels, was it as helpful as Sudanese cash?

There's another important factor. As a weak player in a rough neighborhood, Libya's new authorities need the support of powerful states as the move forward. They don't need the ICC anymore (if they ever did); the court is now a nettlesome complication. So Libya will happily endure blistering press releases from the human rights community in order to cement relations with a rich and powerful neighbor. The only thing that would change that equation is the insistence of other powerful states that there would be serious consequences for welcoming the Sudanese president. Bashir's arrival suggests that message either was not sent--or was not received.