Support for the International Criminal Court is an article of near-religious faith on the political left, a central component of its "global governance" vision. In actuality, however, the ICC has been marginally effective, poorly administered, and its priorities diffuse -- much like its feckless, irrelevant sister, the International Court of Justice, and many other international bodies.
The ICC has avoided irrelevance in one key case -- Sudan. But it has actually made that desperate humanitarian crisis harder to resolve.
Specifically, the ICC indictments in July 2008 for Sudanese President Omar al-Bashir and other regime figures accused of war crimes and crimes against humanity have clearly had the opposite of the intended effect: Rather than pressure Bashir to stop the killing, they've strengthened his domestic position and hardened his already intractable line on "concessions" to inhabitants of Darfur.
This sad turn of events has provided virtually clinical proof of warnings by ICC critics that the court's "independence" was a defect, not a virtue -- leaving it disconnected from the legitimacy of representative government, and also from the global reality of power and conflict.
Yet it is impossible to act responsibly in Sudan without an understanding of power and conflict. Although recent attention has focused on Darfur, in the country's west, the ethnic and religious north-south conflict that preceded Darfur's suffering is also a candidate for the "genocide" label and remains unresolved. A 2005 agreement halted it, but postponed resolving the underlying issue of independence for the south.
Add in the separatist tendencies in the eastern region of Sudan (exacerbated by the Eritrean-Ethiopian conflict), and the country as a whole is a slow-motion disaster, with three potential breakaway regions.
Darfur's day-to-day level of violence may be lower than at the height of the slaughter by Khartoum-backed militias, but millions are still in displaced-persons camps -- their villages and livelihoods ruined; their security still uncertain.
Peacekeepers and outside political efforts, first from the African Union, then in a hybrid with the UN, have been ineffective, with "settlements" collapsing in the swirling, increasingly international conflict. The Security Council's recent one-year extension of the UN peacekeeping mandate didn't change these fundamental operational and diplomatic realities.
The Obama administration entered office seemingly determined to resolve the Sudan problem, but has instead suffered from public displays of internal disagreement.
Last week, Special Envoy Scott Gration suggested to Congress that Sudan be taken off the US terrorism list, thus laying the basis to lift heavy sanctions previously imposed on Khartoum. Gration's outspokenness (which produced mass confusion at the State Department's daily press briefing on Friday) revived his earlier disagreement with UN Ambassador Susan Rice on whether "genocide" in Darfur is ongoing or receding.
But these disagreements only mask a larger problem for both humanitarian and political efforts in Sudan -- a problem centered on the ICC indictments.
Pressed by Europeans, the Bush administration was essentially cornered into supporting the investigation leading to the indictments. In fact, the ICC process simply provided a fig leaf for the Europeans, who wanted to avoid any serious action about Khartoum, while pointing to the ICC as "doing something."
Tragically, however, by taking the focus off the hard, unpalatable choices that could have made a difference in the real world, the ICC indictments have backfired, making it harder to pry loose concessions that once seemed within reach. Moreover, the ICC's approach generated support for the regime among Third World countries (particularly the African Union) that saw indictments and UN peacekeepers as "Western imperialism."
Khartoum thus turned what Westerners thought would be their bargaining chip to leverage concessions from Sudan into a Sudanese precondition barring further progress until ICC investigations and indictments are quashed.
This political jujitsu has unnerved ICC supporters, but even their "bargaining chip" idea was far from the original robust arguments for the ICC. Indeed, it is (in Sudan and elsewhere) completely backward.
Since the ICC strategy itself was effectively a charade to hide the West's continuing distaste for effective action (military or clandestine) against Khartoum, fears of imperialism were a fantasy. The indictments, a Western display of feel-good moralism, are now more than unneeded complications: They are insuperable barriers to real progress, political or humanitarian.
A real political resolution for Sudan requires a new regime prepared to hold al-Bashir and his cronies accountable, and to negotiate peacefully with the country's separatist regions. But regime change won't come without outside help, decidedly unlikely during the Obama presidency, which views such policy with undisguised distaste. As for the Europeans, rhetoric is too often the sharpest tool in their national-security arsenal.
Abetted by the ICC's unfortunate intervention, the prospects for Sudan remain decidedly unhappy. We will now have to see whether President Obama can square his devotion to international law and "open hand" diplomacy with the reality of a ruthless regime accused of genocide.