The world’s court vs. the American right

Have U.S. conservatives really lost the war on the International Criminal Court?

A decade ago, President George W. Bush‘s U.N. envoy, John Negroponte, threatened to shut down U.N. peacekeeping missions from Bosnia to Guatemala if the U.N. Security Council failed to immunize American peacekeepers from prosecution by the International Criminal Court (ICC). The Bush administration threatened to cut aid to America’s military allies if they failed to sign pacts — known as Article 98 Agreements — vowing never to surrender a U.S. citizen to the Hague-based court. John Bolton, the Republicans’ fiercest foe of the court, declared the day he reversed the Clinton administration’s decision to sign the treaty establishing the court his happiest. "I felt like a kid on Christmas day," he wrote in his memoir. The very future of the international tribunal appeared to be at risk.

Today, the Security Council routinely passes resolutions expanding the scope of the international court and few pay it any notice. Last year, the Security Council cited the ICC in resolutions nine times, including in a December resolution — 2085 — that requires peacekeepers in Mali to support "national and international efforts, including those of the International Criminal Court, to bring to justice perpetrators of serious human rights abuses and violations of international humanitarian law."

It’s not that conservatives are ready to embrace the ICC. Fears that the court may one day turn its sites on America’s allies in Jerusalem have been reawakened by the Palestinian Authority’s warnings that it may file a complaint with the tribunal over Israel’s settlement policies. But conservatives have shown considerably less interest in the court’s other investigations, particularly in Africa.

Last month, ICC chief prosecutor Fatou Bensouda opened a formal investigation into alleged crimes in Mali, citing "deeds of brutality and destruction" by armed insurgents who seized control of several towns in northern Mali early last year. The prosecutor recently put Malian government troops on notice that they could potentially face prosecution for rights abuses too.  The court has also been stepping up pressure on the Libyan government to surrender slain Libyan leader Muammar al-Qaddafi’s former intelligence chief, Abdullah Senussi.

France’s U.N. envoy Gérard Araud told Turtle Bay that the "routine" references to the global court constitute "recognition of the ICC as a key actor" on the international stage, one that is helping to end "impunity for the perpetrators of the worst atrocities." Given the court’s early struggles, the broad acceptance of the tribunal, even by its big-power critics, is nothing short of "amazing," he said.

Still, it may be premature to declare victory for the ICC.

The court has opened 18 cases and jailed six people, including the former president of Ivory Coast, but it has so far succeeded in convicting only one war criminal: Congolese warlord Thomas Lubanga, who was sentenced last summer to 14 years in prison for recruiting child soldiers. Three of the Security Council’s veto-wielding members — China, Russia, and the United States — have never joined the tribunal, fearing that it could potentially subject their nationals or those of their allies to prosecution by a court beyond their control. The council’s two most important initiatives in support of the court — the authorization of prosecutions of Sudanese leader Omar al-Bashir and of Qaddafi and his inner circle — have gone nowhere. And the council has done little to use its influence and power to compel the Sudanese or the Libyans to cooperate with the court.

"We are seeing increasing evidence that the ICC is — and is seen as — a permanent fixture in the international firmament," said James Goldston, a former coordinator of ICC prosecutions who now serves as executive director of the Open Society’s Justice Initiative. "Too often, however, states’ support for the ICC has been uneven — strong when Security Council referral to the ICC is a way for the council to show resolve, weak when the ICC needs political backing to do its work."

The council’s embrace of the ICC as a political cudgel has evolved against a backdrop of mounting anxiety — and, in some cases, outright hostility — toward the court in Africa, where most of the tribunal’s prosecutions have played out. In Kenya, the country’s national assembly passed a motion in 2010 urging the government to withdraw from the treaty body establishing the ICC. The move followed the prosecutor’s announcement that the court would pursue charges against six Kenyans, including a presidential candidate, Uhuru Kenyatta, for crimes against humanity. These sentiments have fueled charges that the court has become an instrument of big-power bullying, not a forum for justice. "The structural issues that lead many to suggest double standards are real," Goldston said. The fact that three powers are not parties to the ICC, and have the power to refer cases, is an "inherent problem." At the same time, he added, "I think the current moment is a period in which the court is getting more traction."

In Washington, the court faces far fewer of the fiery broadsides and political threats that marked the conservative campaign to gut it in its infancy. "It’s clear that things have softened since" the early years of the Bush administration," said Kenneth Anderson, a professor at American University’s College of Law, noting that many American conservatives have "lost interest" in the tribunal. As long as the ICC prosecutor does not try to prosecute U.S. and Israel officials — the "last true red lines" — it will likely remain that way, he said. "The United States has made its peace on both sides of the political aisle with the existence of the International Criminal Court and with the functioning of the ICC as long as it doesn’t get too close to the United States," Anderson added.

In some ways, the the Security Council’s routine references to the global court reflect the degree to which it has become an accepted institution. In the end, even President Bush made his peace with the court, standing aside in March 2005, when the Security Council adopted a resolution ordering an investigation into massive crimes by Sudanese authorities in Darfur, Sudan.

The Obama administration has shown even greater sympathy for the court, but its backing has been limited and discrete, primarily coming in the form of allowing references to the ICC in Security Council resolutions and voting in favor of the 2011 resolution opening the prosecution of Qaddafi and his associates. The White House’s commitment has been selective, according to observers.

"I think the United States is interested in constant engagement with the ICC if it serves their purpose. It’s very ad hoc," said Christian Wenaweser, Liechtenstein’s U.N. ambassador and the former president of the ICC’s assembly of states parties. "They supported a Libya referral [when Qaddafi was in power] but they did not support any statements that would require the Libyans to  cooperate with the ICC. They went with the approach of letting the Libyans do it themselves."

Wenaweser said he agrees that the increased ICC-related activity at the Security Council indicates that the organization is becoming "part of the mainstream political discussion," but he added that it’s harder to make the argument that it reflects "stronger political acceptance or support by the Security Council."

Brett Schaefer, a U.N. expert at the conservative Heritage Foundation, agrees. He said that the Obama administration’s cautious approach to the court has given conservatives little cause for alarm. 

"There was a lot of concern when the Obama administration came into office that it would implement a significant shift in U.S. policy towards the court," Schaefer said. "But instead, the shift has been quite moderate." The United States, he said, has cooperated in limited circumstances with the ICC prosecutor, increased rhetorical backing for the court, and permitted Security Council references to the court that don’t cross American red lines.

"For the most part the policy’s settled. It’s because of that that the concerns conservatives had in 2008 and 2009 have been lessened," Schaefer said. But if ICC investigations clash with American interests in places like Afghanistan or the Middle East, he added, it could lead to a revival of U.S. opposition — not only from conservatives, but also from Democratic lawmakers and the wider public.

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