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.
* * *
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"
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
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
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
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
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?"
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.
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.
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.
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.
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.
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