Cool Ties

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.