Does Sudan need another ICC investigation?

The Enough Project has just published an analysis of violence in the Blue Nile and South Kordofan regions of Sudan. The report calls for a full U.N. investigation and, ultimately, a U.N. Security Council referral of the situation to the International Criminal Court (the Council referred the Darfur violence to the court back in March 2005):

The international community must do more to investigate the war crimes, crimes against humanity, and torture being perpetrated by Sudanese government forces against their own people. If implemented quickly, a commission of inquiry and the involvement of the International Criminal Court prosecutor could serve as a substantial deterrent force against future violence.

As Erik Voeten discussed yesterday, the claim that international judicial intervention deters atrocities is devilishly difficult to verify. The fact that ICC involvement didn't end atrocities in Darfur or dissuade Khartoum from launching its bloody offensives in Blue Nile and South Kordofan at least calls into question this new specific deterrence claim. But it certainly doesn't discredit it. In a talk yesterday here at American University's School of International Service,  Enough Project co-founder John Prendergast argued convincingly that the bright international spotlight on Darfur (including via the ICC) has in fact mitigated some of the abuses and prevented Khartoum from unleashing its worst. Amped up international scrutiny of Sudan's other war zones might do the same. 

The Multilateralist

The (legally) inconsequential Iraq war

Op-ed pages and blogs have been spilling over the last few weeks with 10-year anniversary analyses of the Iraq war's impact. For the region, for U.S. politics, and in human terms, its lasting effects are hard to deny. But in one realm, the Iraq War has had little impact: international law and organization. That conclusion may seem odd given the heated debates about the war's legality and the fractious Security Council diplomacy in the months before the war began. But consider those two elements in turn and it's apparent that the war didn't change much:

International law: The Iraq War's many critics pointed out that there was no plausible argument that the war was an exercise in self-defense and that the failure of the Security Council to authorize the invasion therefore made it against international law. The United States and the United Kingdom countered with an array of arguments. Resolution 1441 was adopted under Chapter VII, they pointed out. It threatened "serious consequences" and did not explicitly say that the Council needed to take additional action for those consequences to occur. Other arguments were added to the mix. U.S. officials sometimes insisted that the Council authorization of force against Iraq from 1991 was still valid and that Iraq's failure to comply with existing resolutions reactivated it. 

Whatever one thinks of these arguments, none of them were new. In fact, the U.S. and several of its allies had gone through almost the exact same exercise in legal argumentation when allied warplanes  struck Iraqi targets in 1993 and December 1998 (Operation Desert Fox). Those air strikes was not specifically authorized by the Council and faced sharp criticism from Russia, China, and other Council members. What's more, the 1999 Kosovo intervention, which also lacked Council approval, had reinforced the precedent of major-power action without the UN's blessing.   

It's therefore tough to see how the Iraq War really changed the rules or patterns of state practice on the use of force. Legally speaking, the world is now in pretty much the same place it was before the Iraq War: the Security Council clearly has an important legitimizing role when it comes to the use of force, but the United States and other big powers remain unwilling to acknowledge that it has an exclusive role. 

The UN Security Council: For some observers, the decision by Washington and London to invade without Security Council approval signaled the demise of that body's relevance. Far from it. The U.S. and U.K. returned to the Council soon after the invasion to get recognition for its occupation of Iraq. In fact, the Security Council headed into an intensely active phase soon after the war, launching a major peacekeeping operation in Sudan and expanding its force in Congo substantially. Looking at metrics of Council activity, one could more readily conclude that the Iraq War catalyzed the Council:

Source: Security Council Report 

In short, there's little evidence that the Iraq War substantially impacted Security Council operations or the relationship between its members.