JUNE 2, 2014
Politics Seen Undercutting Credibility of a Court
By SOMINI SENGUPTA
THE HAGUE -- The top American envoy to the United Nations, Samantha Power, recently made an impassioned case for the International Criminal Court, a tribunal based here that the United States had pilloried only a decade ago.
"Our grandchildren," she said before the Security Council  last month as it weighed a measure to refer the warring parties in Syria to the court,  "will ask us years from now how we could have failed to bring justice to people living in hell on earth."
Her remarks were part of an unusual American push to widen the reach of the global tribunal. In the corridors of United Nations headquarters, United States envoys were buttonholing foreign diplomats to back the resolution, and though it was never expected to pass -- Russia vetoed it, as anticipated -- the United States earned plaudits for helping to rally support from more than 60 nations.
But that full-throated endorsement masked the Obama administration's more complicated, and critics say, at times undermining approach toward the court. If the United States once actively campaigned against the court, today it is seen as supporting the body only when it suits the administration's foreign policy agenda, using the threat of prosecution to skewer its foes while protecting its friends from its reach.
Ms. Power, for example, seized on the Russian veto to criticize an adversary. "Sadly, because of the decision by the Russian Federation to back the Syrian regime no matter what it does, the Syrian people will not see justice today," she said. "They will see crime, but not punishment."
And yet, even as the administration includes powerful champions of accountability -- Ms. Power among them -- scholars of law and diplomacy say such actions have also politicized the notion of international criminal justice and in turn undermined its credibility.
That perception could not come at a worse time for a court whose biggest challenge is to convince the world that its investigations are not directed by politics. It has been criticized for indicting a disproportionately large share of Africans. It has won only two convictions in the course of a decade. It has been unable to apprehend several men it has indicted -- including the former Libyan dictator Col. Muammar el-Qaddafi's son, Seif al-Islam el-Qaddafi, whose investigation the United States supported.
The United States is not a party to the Rome statute that created the court in 2003  to try the most egregious crimes against humanity. Indeed, it has been a lightning rod in United States foreign policy. The administration of President George W. Bush, especially in its early years, aggressively campaigned against it and sent envoys across the world to extract promises from roughly 100 countries not to refer American soldiers to the court. Congress passed a law barring United States taxpayer funding for the court.
Entrenched ideological opposition has given way to a more pragmatic approach. The United States abstained on a Security Council measure  to refer Darfur to the court in 2005, allowing it to pass, and voted to refer Libya in 2011.  It helped ensure that a Congolese warlord, Bosco Ntaganda,  was shipped to The Hague after his surrender to the United States Embassy in Rwanda last year. American soldiers are helping the Ugandan government to hunt for Joseph Kony,  another person accused of being a war criminal indicted by the court who is believed to be hiding in central Africa.
"The United States has reconciled itself to the existence of the I.C.C. and is willing to see the I.C.C. involved in certain political contexts, where it suits," said David Bosco, an assistant professor at American University and the author of a recent book on international criminal justice. "It adds to the perception that the court is hemmed in by geopolitical realities."
The Syria resolution embodied the United States' approach. The United States inserted language in the draft text to make sure the tribunal could not open an investigation into the Golan Heights, a slice of territory that its ally Israel captured from Syria in the 1967 war and effectively annexed in 1981. It made sure, too, that American soldiers could not be prosecuted and that its taxpayer funds could not be used to support the efforts of the court.
Argentina, which is a party to the statute that created the court, slammed the Syria resolution, calling it hypocritical. As Argentina's ambassador to the United Nations, Maria Cristina Perceval, told the Council,  "There seems once and again to be the purpose that we accept the exercise of selectivity when it comes to justice."
A United States government official said that the resolution was meant to address atrocities committed in the war that began in Syria three years ago, "not longstanding issues unrelated to those atrocities."
The United States lent its support to the resolution knowing that it was destined to fail, and that its defeat would serve to embarrass if not isolate its rival, Moscow. This was the first time United States officials had so actively lobbied for a country to be investigated by the court.
Mark Kersten, who writes a blog about international justice, said the United States had hurt the court's credibility with its "political tailoring" of the Syria text. "The U.S.'s demand that citizens of non-state parties should be excluded from I.C.C. jurisdiction should be seen for what it is: a violation of the principle of equality before the law and an attempt to guarantee that only people from some countries can be prosecuted -- irrespective of the crimes they commit," he said.
Critics, including Mr. Kersten, say the United States -- or for that matter any of the other world powers on the Security Council -- has done very little to support the court's efforts.
The United States has done little publicly to persuade the government it supports in Tripoli to cooperate with the court -- even after Libya last month lost  its case to try Mr. Qaddafi in its own courts. Nor has it said anything about its own allies, when they are accused of committing atrocities -- Egypt's military government, for instance, when it fired on its own citizens.
Equally, the Obama administration has kept in place the bilateral agreements  the Bush administration extracted from some 100 countries, effectively giving American soldiers immunity from the court. President Obama earlier this year confirmed that American soldiers who might one day take part in peacekeeping operations in the United Nations newest mission, in Mali, would likewise be protected from prosecution.
The United States has come a long way since the Bush administration boycotted the ceremony creating the court a decade ago. By 2005, Secretary of State Condoleezza Rice had come to see the hard anti-court stance as counterproductive, according to a former administration official.
"What you see on the part of the United States is ad hoc engagement on the I.C.C. that can be positive and can be supportive of the institution," said Christian Wenaweser, the ambassador for Liechtenstein. "It's fair to say this administration is generally supportive of the institution as such."
He hastened to add that there were clearly limits to American support. "We're not talking about the U.S. joining the court anytime soon."