A refugee family in Goz Amer camp in eastern Chad. ŠUNHCR/H.Caux

As the Darfur region of Sudan smolders, human rights activists and a growing number of governments have adopted a new strategy. They are calling for the International Criminal Court (ICC) to take the lead by investigating and indicting those responsible for the atrocities. The court, established in 1998 and situated in The Hague, Netherlands, is designed to prosecute the worst crimes against humanity. Given the continuing brutality in Sudan, who could object?

But judicial intervention may not be the wisest course—at least not yet. Those clamoring for the ICC to take the lead want to establish the precedent that atrocities will be punished. Instead, they may be handing cautious politicians an excuse for continued inaction while unnecessarily dividing the United States and Europe.

No one disputes the urgency of the situation in Darfur, where the Sudanese government has employed Arab militias known as Janjaweed to fight an insurgency and terrorize the local population. By some estimates, the conflict has killed as many as 200,000. More than a million people have been forced from their homes. In September, then U.S. Secretary of State Colin Powell publicly labeled the campaign in Darfur a genocide. In response, the U.N. Security Council passed resolutions and helped establish a small African Union peacekeeping force. But council members have refrained from sending their own troops or even threatening the Khartoum government with force. Meanwhile, the atrocities continue.

With hopes of a serious military response fading, momentum for a judicial one is building. Activists have besieged U.N. Secretary-General Kofi Annan and U.S. President George W. Bush with calls to prosecute those responsible for the massacres. Earlier this month, the U.N.-appointed International Commission of Inquiry on Darfur recommended referring the crisis to the ICC (although the commission refrained from calling the atrocities genocide).

But there is little evidence that the threat of prosecution is a meaningful deterrent to regimes like the one in Sudan. The existence of an international criminal tribunal for the Balkans—and even explicit threats of prosecution—did not stop Slobodan Milosevic from cleansing the Albanian population of Kosovo. The Rwandan government engaged in several bloody reprisals against Hutu civilians even after the United Nations set up a tribunal to investigate the earlier genocide. And the existence of a tribunal in Rwanda appears to have done nothing to staunch the bloodletting in the neighboring Democratic Republic of the Congo.

There is plenty of evidence, however, that Western politicians use international trials as a way to dodge tough action. It was in large part because the United States and Europe couldn’t agree on an effective military response that they created a tribunal for the Balkans. The international court for Rwanda, too, was as much therapy for a shamed world as it was a meaningful response to that region’s continuing crisis. Time and again, the West has shown itself willing to spend millions on lawyers and judges after the fact but far less inclined to take risks to stop slaughters in progress.

If politicians can deploy pledges of support for trials to deflect pressure for intervention, the international justice campaign may actually be doing today’s victims a disservice. Already, the public debate has shifted from how the outside world should prevent further bloodletting in Sudan to how the crimes there should be prosecuted. The one question on Sudan that Secretary of State Condoleezza Rice fielded when she visited London recently was whether Sudan’s crimes should be investigated by the ICC or by a new African court.

American opposition to the court is well known, even notorious. The ICC has almost no support in the U.S. Senate (which would have to ratify full U.S. participation), and the Bush administration has pursued a policy of protecting U.S. citizens from the ICC’s reach. And yet, many human rights groups have decided to use the Sudan crisis to bludgeon the United States into changing its position. In a recent press release, the advocacy group Human Rights Watch claimed that “the Bush administration is creating a deadly delay for the people of Darfur by attempting to block the U.N. Security Council from referring Darfur atrocities to the International Criminal Court.” In their eagerness to establish and legitimize the court, some human rights officials have elided entirely the distinction between meaningful action to stop ongoing atrocities and litigation to assign responsibility for blood already shed. It is a particularly important distinction, given the ICC’s lack of any enforcement capability.

In making the ICC the focus of Sudan activism, the human rights community has chosen a strategy tailor-made to divide the United States and Europe. Already, the debate on where Sudan’s crimes should be prosecuted has devolved into the familiar—but entirely unproductive—morality play that sets the sovereignty-minded American against the multilateralist European. Former British Foreign Minister Robin Cook gave voice to the anger many Europeans feel toward the U.S. position: “This is the time when a candid friend should tell Bush to put the urgent need of the people of Darfur for justice before his own dogmatic hostility to the International Criminal Court.” (The needs of Darfur’s people are all the more acutely felt by some in Europe when the United States can be cast as the villain.)

The ICC may eventually become an important judicial complement to international police action. But the world is not there yet. When a crisis is still unfolding, the human rights community should stay focused on generating the political and moral will to intervene effectively. As the 60th anniversary of Auschwitz’s liberation passes, it is worth remembering that the legacy of Nuremberg will be hollow if it means more trials but no fewer genocides.