A Good Week for International Law

July has been a bad month for war criminals. On Monday, July 14, the prosecutor of the International Criminal Court set in motion proceedings against Sudanese president Omar el Bashir for genocide. Exactly one week later Radovan Karadzic–wanted for genocide in the Balkans–was arrested in Belgrade.

What does one have to do with the other? To be precise: not much. The International Criminal Court (ICC) is a separate institution from the International Criminal Tribunal for the former Yugoslavia. (ICTY). The latter is a temporary, ad hoc tribunal focused only on the Balkans. The former is a permanent institution with a global remit. Despite these differences, though, Karadzic’s arrest may offer a glimpse into how Bashir may one day face justice. It also shows why international war crimes tribunals can be such useful institutions to have around.

Karadzic — the political mastermind behind the ethnic cleansing of Bosnia in the 1990s, including the 1995 massacre of 8,000 Bosnian Muslim men and boys in Srebrenica — has been on the run from the ICTY for the past thirteen years. So why, all of a sudden, is he finally behind bars? The answer flows from a combination of internal politics and international pressure. In June, the pro-west Serbian President Boris Tadic won a decisive victory against hardliners in parliamentary elections. This victory gave Tadic the political cover to finally purge hard line nationalist elements from the government and, once and for all, move against Karadzic. Karadzic’s partner in war crime, General Radko Mladic, may soon follow.

Sending Karadzic to the ICTY was a personal political victory for Tadic; it showed his opposition to be truly marginalized. But the smart application of carrots and sticks by the United States and European Union also helped set the stage for Karadzic’s arrest. Since the founding of the ICTY, the United States and European Union members have made Serbian cooperation with the tribunal the sine qua non of its bi-lateral relations with Serbia.

The United States is the Tribunal’s principal funder and Americans are well represented among ICTY investigators, prosecutors and staff. Each year, aid to Serbia from the United States is conditioned on Serbian cooperation with the court; it is the stick that backs American efforts at political reform in the Balkans. Even more important to Belgrade than American dollars is acceptance into the European Union, whose members have held up even the prospect of future Serbian ascension until Belgrade comes clean with its bloody past. This means handing over wanted war criminals to the ICTY.

One can imagine a similar set of carrots and sticks easing Bashir from power. Bashir’s hard-line National Congress Party is unpopular in much of Sudan. Elections are scheduled for 2009–and if held freely and fairly might herald a changing of the guard in Khartoum. The ICC proceedings provide the international community with critical leverage over the Sudanese government, which so far has had little incentive to go ahead with these elections. But just as the European Union and the United States wielded the ICTY to spur political progress in the Balkans, the Security Council can use the threat of indictment–and the prospect of suspending proceedings — for political gains in Sudan. The Security Council (as is its prerogative) can suspend the ICC proceedings if it decides that doing so would be in the interest of peace and security. If the Sudanese government takes credible steps toward peace in Darfur, and follows through with elections mandated in a 2005 peace accord it signed to end a separate civil war in Sudan’s south, the Council may consider lifting the indictment.

Missing from this equation, however, is American support for the ICC. Right now, the Bush administration is somewhere between actively opposed and indifferent to the Court. After spending much of its first term trying to undermine the Court in various ways the administration is starting to acquiesce to its existence. The administration withheld its veto and abstained from a 2005 Security Council resolution authorizing the ICC to investigate crimes in Darfur. And as president of the Security Council in June, the United States even convened a Council briefing by the ICC’s chief prosecutor.

Still, these modest steps toward a detente with the Court are a far cry from the way in which the United States embraces the ICTY as a critical tool of American diplomacy. Indeed, upon news of Karadzic’s arrest, the White House was quick to issue a statement hailing “an important demonstration of the Serbian Government’s determination to honor its commitment to cooperate with the International Criminal Tribunal.”

Until the United States views the ICC through the same lens as it views the ICTY, the Court will only have limited potential as a stick to back diplomacy toward places like Sudan. This is too bad. In Serbia, the ICTY bolstered moderates, marginalized hard liners and locked away bad guys. The ICC can do the same in Sudan. If only we’d let it.