Cool Ties

From Libya to Syria, the inside story of how the Obama administration went from supporting to sidelining international justice.

On March 19, 2011, as Western warplanes began pummeling Muammar al-Qaddafi's forces in Libya, prosecutors at the International Criminal Court (ICC) in The Hague were preparing their own offensive. With the aid of communications intercepts and testimony from defectors, they raced to investigate attacks by the Libyan regime on demonstrators and political opponents.

For many human rights activists, the quick and multifaceted response to the atrocities in Libya was the kind of robust humanitarianism they had often advocated. It was not surprising that activist and academic Samantha Power, then a National Security Council (NSC) staffer, was a key official crafting the U.S. administration's multilateral strategy on Libya. The author of a leading book on American responses to genocide, Power had often advocated humanitarian intervention. She also strongly backed the creation of the ICC, and improving relations between the court and the United States was part of her NSC portfolio. For Power and other White House officials, the 2002 "unsigning" of the court's charter by George W. Bush's administration was a prime example of counterproductive unilateralism.

But as the Libya intervention developed, a subtle fissure emerged between political realities and the demands of international justice. For Power, who is now the U.S. ambassador to the United Nations, and other members of Barack Obama's administration, the episode may have been a cautionary experience that is now influencing U.S. policy on whether to support international prosecutions in, among other places, Syria, South Sudan, Afghanistan, and the Central African Republic.

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The Libya crisis landed suddenly on the ICC's doorstep. Qaddafi was deeply suspicious of international justice and never joined the court, which greatly limited its reach in his country. Only U.N. Security Council action cleared the way for a full investigation into the alleged crimes of the Qaddafi regime. That "referral" resolution, passed unanimously in late February 2011, was one part of a rushed international effort to curtail Qaddafi's crackdown; other elements included sanctions, an arms embargo, and travel bans on senior Libyan officials.

By early March 2011, it was evident that these measures would not be enough. Fearful that Qaddafi was going to rout his opponents, the West launched its military intervention. For some in the ICC, that operation offered the tantalizing prospect that NATO might bolster the court's investigation. In its early work in Uganda, the Democratic Republic of the Congo, and Sudan, the court had failed to get its hands on most of those it indicted, bringing complaints that the new institution was impotent. The court's chief prosecutor, Argentine lawyer Luis Moreno-Ocampo, saw Libya as a golden opportunity to hitch international justice to military power.

The broader public, however, was significantly less enthusiastic about military action. Particularly in the United States, criticism of the operation mounted. Congress expressed anger about not being consulted; legal scholars questioned the constitutionality of the campaign; and military experts warned that NATO's strategy was incoherent. As the weeks passed without the intervention yielding results, several Western leaders publicly considered a negotiated departure for Qaddafi. "Should there be an opportunity for some sort of arrangement for Qaddafi to step aside, that is something the Libyan people will have to judge and we will take it as it comes," said Susan Rice, then-U.S. ambassador to the United Nations.

A quiet exile for Qaddafi had several apparent advantages, not least ending a bloody conflict that, as of late spring, had no clear endpoint. But there was a wrinkle. A public ICC indictment of Qaddafi would greatly complicate the exile option, yet an indictment appeared to be precisely what the court's prosecutor wanted. In May 2011, Moreno-Ocampo announced plans to indict several senior regime officials. He didn't name names, but it seemed all but certain that Qaddafi would be among them. In public and private, the prosecutor urged Western powers to prepare for arrest operations.

Around that time, the prosecutor got a phone call from Washington. On the line were Power and Harold Koh, then the State Department's legal advisor. Both knew the prosecutor personally. Moreno-Ocampo had sought Power's advice when he was being considered for the ICC position in 2002. He later attended her wedding in Ireland.

But the phone call wasn't social; the two Americans wanted to talk about the indictments the prosecutor was planning and how they would affect the military intervention. Precisely what was said on the call is not publicly known. According to several former ICC officials, Moreno-Ocampo felt pressured to slow down his planned indictments and reacted with frustration. (During interviews with me, Moreno-Ocampo declined to comment on the incident.)

When I spoke to Power and Koh a few months ago, they had a different recollection. "We in the U.S. government were interested in knowing the prosecutor's plans," Power said, "so we could leverage whatever timing he had in mind to try to use it to get Qaddafi to leave or surrender." She described the call as a "brainstorming session." Koh told me, "We didn't so much want to give him guidance as to help him avoid potholes."

But another senior U.S. official acknowledged that there was concern in the administration that indictments of Qaddafi and other senior Libyan officials could become obstacles to potential negotiated solutions.

The prosecutor ignored whatever pressure he felt. In late June 2011, he announced that he was seeking indictments of Qaddafi, his son Saif, and the regime's intelligence chief, Abdullah al-Senussi. But Moreno-Ocampo's pleas for military backup fell on deaf ears. To the prosecutor's frustration, the United States and other Western powers showed no interest in planning for arrest operations or actively integrating the indictments into their military or political strategies.

To date, none of the three Libyan indictees has set foot in The Hague. Rebels killed Qaddafi, but Saif and Senussi remain in Libyan custody. Relations between the court and Tripoli have been rocky; Libya has insisted on trying the men itself, and the militia holding Qaddafi's son even detained several ICC officials who tried to meet with him. The West -- intent on bolstering a fragile new government -- has put minimal pressure on Libya to cooperate. In fact, the State Department's point person on global justice, Stephen Rapp, publicly backed Libya's effort to try the men in 2012, even though leading human rights groups had concluded that the country was incapable of providing fair trials.

The friction between the court and the Obama administration over Libya illustrates the difficulty that even U.S. officials enthusiastic about international justice have in supporting it consistently. Before joining the administration, Power, Koh and others argued forcefully that the new court would serve U.S. interests. In 2004 and 2005, Power insisted that an ICC investigation in Sudan could "deter future massacres," and she lambasted the Bush administration for its reluctance to refer the case through the Security Council. (Bush ultimately acquiesced to a referral.) Koh insisted that U.S. concerns about the court were evidence of a crippling double standard, and he urged members of Congress to consider joining the institution.

At least initially, that enthusiasm for the court carried over when Obama entered the White House. When the administration took office in January 2009, it took several steps to forge a closer relationship with the court. On an early visit to Africa as secretary of state, Hillary Clinton expressed regret that the United States had not joined the court. The White House began an interagency process to consider how the United States could support the court. And American representatives began meeting openly with ICC officials, something the Bush administration had avoided. One official who worked in both the Bush and Obama administrations described the latter, in its early days, as an ICC "glee club."

Today, the surface warming between the superpower and the court continues, but it obscures some chilly undercurrents. Since the Libya intervention, the United States has been reticent about several possible new court investigations. In part, this may be tactical; with many African leaders charging that the court is a neocolonial enterprise -- all indictees to date have been from Africa-- the United States does the institution no favors by publicly championing new investigations on the continent. But there is also growing evidence that even a U.S. administration stocked with human rights activists has growing doubts about the court's overall utility.

Consider Syria, which has been a leading candidate for ICC scrutiny since the country's civil war began in early 2011. Several dozen states, including nine Security Council members, have called for an ICC investigation, which would require a council referral. (Syria is not a court member.) But the Obama administration has been lukewarm on the idea, and not only because the prospects of Moscow acquiescing remain slim. In a major speech in 2013, Power suggested that an ICC investigation would likely be ineffective. "What could the International Criminal Court really do, even if Russia or China were to allow a referral?" she asked. "Would a drawn-out legal process really affect the immediate calculus of Assad and those who ordered chemical weapons attacks?"

In effect, Power was questioning the court's deterrent effect -- something many human rights and international justice activists have taken as an article of faith. Power herself had insisted on that deterrent effect in advocating an ICC role in Sudan, differing from the "skeptics" who doubted ICC investigations could change leaders' behavior.

In two developing African crises, meanwhile, it is likely that U.S. officials recognize that, once initiated, ICC proceedings can be difficult to blend with diplomatic (including humanitarian) objectives.     Washington has not backed ICC involvement in South Sudan, where recent violence has claimed thousands of lives. Instead, the administration has supported an African Union commission of inquiry without authority to prosecute. And when Power made a high-profile trip to the Central African Republic in December, she insisted repeatedly on accountability for atrocities -- but she again left the ICC out of the mix, mentioning only national prosecutions and another international commission of inquiry.

In other regions, Washington's aversion to ICC involvement appears to be more about avoiding scrutiny of U.S. officials and close allies. In Afghanistan, where thousands of civilians are killed every year, the Obama administration has shown no enthusiasm for international prosecutions, even though the court would almost certainly focus on Taliban crimes. According to former ICC officials, the United States has not provided any information that might help the court launch a full investigation of atrocities committed there by any of the parties to the conflict.

U.S. opposition to an ICC role runs even deeper when it comes to Palestine. In 2009, Palestinian officials attempted to get the court involved in investigating crimes allegedly committed on their territory, and they have periodically hinted at reviving that push. But in private conversations, according to former administration officials, the United States has made clear to the prosecutor's office that any investigation in Palestine would have severe repercussions for the U.S. relationship with the court.

As political contexts shift, Washington might ultimately support an ICC role in some of these places. But the last six years, particularly the Libya episode, suggest that U.S. administrations of all political stripes may prefer an ICC that remains on the sidelines of the situations they care about most.

Portions of the reporting for this article can also be found in the book Rough Justice: The International Criminal Court in a World of Power Politics.

Win McNamee/Getty Images


Bibi Trapped

Why Israel's prime minister can't call the shots on Iran or the peace process.

Benjamin Netanyahu is one smart Israeli politician. This year, he will become the longest continuously serving prime minister in Israel's history. He is the only Israeli leader to win back-to-back elections. And despite his detractors' efforts to portray him as an illegitimate expression of Israeli popular desires, his staying power -- at least on security and foreign policy -- is an authentic expression of where much of the country stands in 2014.

Yet on the eve of his White House meeting with President Barack Obama on Monday, March 3, when the two leaders will discuss Iran, peace talks, and other issues, Bibi faces the prospect of being ensnared in traps that will limit his room to maneuver and undermine Israel's interests, as he defines them.

To be sure, Netanyahu's base is reasonably secure, and even if Secretary of State John Kerry succeeds in producing an agreement on a framework for Israeli-Palestinian peace that doesn't fully pass muster with parties to the right of Netanyahu, the prime minister and his government will likely endure. So far, Kerry has been operating in Bibi's comfort zone and has likely conceded enough to protect him against his critics. Moreover, Obama has learned there is little profit in arguing publicly with Bibi or in creating the impression that Israel and the United States are at odds over issues (see: a settlements freeze) that he cannot win -- and so has Netanyahu.

Still, there's a mix of pressures afoot that should and do worry Netanyahu. They come from different angles, each creating a box that could limit Netanyahu's options to influence or guide developments in the Middle East.

TRAP No. 1: Iran. The first box has been created by Iran -- the mother of all worries for Netanyahu and the mother of all fears and opportunities for Obama. (As for the Iranians, let's just say they are sitting in the catbird seat. The mullahs have already won a great deal, and Netanyahu knows it.) In short, Netanyahu cannot stop or control the action currently occurring on the nuclear front -- a painfully difficult position for the prime minister to be in.

Tehran's nuclear scientists now have the technical skill and knowledge to make a bomb and, as a practical matter, the West's agreement that they can enrich. And they will negotiate with the P5+1 (the United States, Britain, China, France, Russia, and Germany) to see how much of their nuclear infrastructure they can preserve.

In short, Iran has won already. The country is a nuclear weapons threshold state. What's left to negotiate is what Iran can keep, not whether Iran can keep it -- and, of course, how much time the West can put back on Iran's nuclear clock to limit its breakout capacity.

Netanyahu believes that Obama has acquiesced in this game. He fears the president has three objectives on Iran: block an Israeli attack, make a U.S. strike unnecessary, and use diplomacy to reach an agreement that prevents Iran from crossing the nuclear threshold on his watch.

All Netanyahu can do, then, is wait and watch and hope he can somehow, through Congress or on his own, shape the terms of a comprehensive nuclear agreement, should there be one. In a recent talk, however, Amos Yadlin, a former head of Israeli military intelligence, put the odds of a Netanyahu dream agreement (meaning no enrichment) at 0 percent and that of an acceptable agreement at just 5 percent. (He didn't even give the odds of the possibility of a comprehensive accord, presumably because one is unlikely, certainly within the first six-month period.)

This was not the way it was supposed to be. The prime minister's goal -- linked to the essence of his very identity -- has long been to be the leader who frees Israel from the shadow of the Iranian bomb. But now, he watches from the sidelines. Military action is unthinkable, and Bibi faces the painful reality that Iran very well may cross the red line on nukes while he's in office.

TRAP No. 2: Peace Process. For Bibi, the Israeli-Palestinian issue has always been a back-burner affair: never an opportunity and at best a headache and trap to be avoided. Kerry's relentlessness on the issue has surprised him, as has the secretary of state's willingness to accommodate some of Israel's requirements.

But if the United States succeeds in putting out a framework that isn't completely gutted by asterisks and reservations, at some point, phase two will begin. And that will require moving beyond principles to details in a comprehensive accord and then on to the unimaginably challenging world of practical implementation. That, in turn, will require hard decisions by Bibi and Palestinian President Mahmoud Abbas, real mediation on Kerry's part, and Obama's involvement.

The further this peace process goes, the greater the danger it will set up excruciatingly painful choices for Bibi. Having accepted a framework, should he go down the road of an actual, in-the-flesh two-state solution, Netanyahu will be leaving behind not just his coalition but his own convictions and aspirations as well. He has never envisioned himself as the Israeli father of a Palestinian state based on anything like the terms Abbas might be able to accept, on tough issues like Jerusalem and borders.

But as with Iran, the next move is not really up to Netanyahu. It's up to Kerry and Obama. To be sure, Bibi always has the option of saying no. But the deeper he gets, the more difficult that will become -- particularly if the Palestinians prove uncharacteristically flexible, or the Americans uncharacteristically bold.

TRAP No. 3: Sanctions and Boycotts. Inextricably tied to the peace process is the threat of foreign pressure on Israel and boycotts of the country's products. Some countries -- in Europe, for instance -- have suggested these consequences are possible if peace talks fail. On Feb. 1, during remarks in Munich, Kerry said, "For Israel, there's an increasing delegitimization campaign that has been building up. People are very sensitive to it. There are talk of boycotts and other kinds of things. Are we all going to be better with all of that?" The Israelis reacted negatively to these comments, largely because they interpreted them as indirect pressure. Kerry is no supporter of boycotts, but the threats from Europe nonetheless work to his and Obama's advantage -- pushing a point without leaving fingerprints.

Israeli leaders are taking this all seriously; there is a real fear of being isolated and a strong desire not to get to that point. Israeli Finance Minister Yair Lapid said in late January that even a low-scale boycott could create a loss in exports of $5.7 billion a year. "We must recognize that if the talks fail -- and the world will believe they failed because of us -- there will be a price, and it's best we know what that price is," Lapid said in a speech.

Netanyahu can't whistle past the graveyard on boycotts. If they are imposed, a critical line will have been crossed. Israel will lose big time -- and Bibi will too.

There is a sense that, even though the peace process seems to have gone on forever, this is a last chance. (It's a trope Kerry has repeatedly hyped.) And there's a fear among both the Israelis and the Palestinians that they will be blamed for the collapse, what former U.S. Secretary of State James Baker used to call having a dead cat left on the doorstep. Bibi, certainly, cannot leave the Kerry process without good reason. If he were to do so or if the process were to collapse and Israel were to be blamed, the Palestinians' Plan B would be to go to the United Nations and resume their campaign for recognition in the international arena (which the United States would oppose). Israel, meanwhile, has no plan B. Settlement activity wouldn't stop -- and further moves by foreign states to pressure Israel would be inevitable.

Inaction and impotence are tough for Israel to handle. Right now, however, Bibi can't really act, yet alone call the shots, without consequences.

Certainly, Netanyahu is a force to be reckoned with. He has cornered the leadership market in Israel in no small part due to his formidable political skills, as well as the absence of good alternatives. And there's certainly reason to believe spaces might open up that would allow Bibi to escape these traps -- thanks to Iran's mullahs overreaching, the Palestinians rejecting Kerry's process, or the U.S. Congress coming to his aid.

But right now, Netanyahu -- bravado and self-confidence notwithstanding -- sees a pretty dark picture: Iran as a potential nuclear state, tough choices on the peace process he doesn't want to make, an unforgiving world that really doesn't understand Israel's concerns, and a U.S. president who seems risk-averse. No good opportunities sit in front of him at the moment.

Sometimes it really is tough to be the king.

Photo: ABIR SULTAN/AFP/Getty Images