Earlier this month, Samantha Power, the head of the U.S. Agency for International Development, tweeted in celebration about Sudan moving to join the International Criminal Court at the Hague.
Sharing BIG news from Khartoum: the Council of Ministers in #Sudan—yes, Sudan!—has voted unanimously to join the @IntlCrimCourt. A joint transitional govt Sovereign Council session votes next. A revolution for “Freedom Peace & Justice” just took a key step toward ending impunity.
— Samantha Power (@PowerUSAID) August 3, 2021
Power’s words were extraordinarily cynical in several ways. “They make clear that much of what we call the rule-based order is just an order in which we rule,” said Trita Parsi, executive vice president of the Quincy Institute for Responsible Statecraft. “Ultimately it is much more about continued American domination than actually having a world in which the rules are such that they protect us as well as others.”
The first issue with Power’s sentiments is obvious: The U.S. itself has not joined the International Criminal Court. Moreover, in 2002, President George W. Bush signed into law a bill authorizing the U.S. military to invade the Netherlands to free any American being held by the court.
Second, the Biden administration has strenuously opposed ICC investigations into the actions of Israel (and Palestinians) in the West Bank and Gaza and of the U.S. (and the Taliban and the former Afghan government) in Afghanistan.
Third, in 2014 when Power was U.S. ambassador to the U.N. during the Obama administration, she personally attempted to prevent the Palestinian Authority from joining the ICC — that is, exactly what she now praises Sudan for doing. At the same time, she loudly supported an attempt by the U.N. Security Council to refer Syria to the ICC for an investigation into atrocities on all sides during the country’s civil war.
Power’s glowing words today about the court are therefore certainly on brand for her: She made her reputation with the book “A Problem From Hell,” decrying the failure of the world to stop genocides in the 20th century, and went on to become the founding director of the Carr Center for Human Rights Policy at Harvard’s Kennedy School. They just have nothing to do with her own history, the stance of the Biden administration, or the actions of the U.S. government.
The relationship between the U.S. and the ICC is long, vexatious, and occasionally contradictory.
The rationale for the creation of the ICC was simple and obvious: Governments frequently commit horrifying crimes, including war, torture and genocide, yet almost never punish themselves. Therefore justice will often only be available at an international level.
At a conference in Italy in 1998, the U.N. General Assembly passed what came to be known as the Rome Statute, which established the basis for the ICC. Only seven countries voted against the treaty: the U.S., Israel, China, Saddam Hussein’s Iraq, Muammar Gaddafi’s Libya, Qatar, and Yemen.
Nonetheless, Bill Clinton signed the Rome Statute just before he left office, stating that “we do so to reaffirm our strong support for international accountability and for bringing to justice perpetrators of genocide, war crimes, and crimes against humanity.” Clinton’s action, however, had no legal force. Moreover, he also said that he would not submit the treaty to the Senate for ratification nor recommend that Bush, his successor, do so. Rather, he suggested that the U.S. “observe and assess the functioning of the court over time” and then decide what to do.
The Bush administration was unwilling even to say nice words about the ICC. As the treaty’s 60-country ratification threshold was reached in 2002, John Bolton, then undersecretary of state, informed the United Nations that the U.S. was withdrawing its signature and that we did not intend to become a party to the Rome Statue. Then Congress passed the American Service-Members’ Protection Act, which authorized the president to use “all means necessary” to prevent any prosecution of Americans by the ICC. This led to the bill being nicknamed the “Hague Invasion Act.”
With the arrival of Barack Obama in the White House, the pendulum swung back slightly, with the State Department announcing that the U.S. attitude toward the ICC was changing “from hostility to positive engagement.” In practice this meant only that the Obama administration would make several small gestures of support for the court. But Obama did not re-sign the treaty and never considered sending the Rome Statute to the Senate.
Most significantly, the Obama administration — with Power directly involved — fervently opposed a 2014 bid by the Palestinian Authority to join the Rome Statute. America’s concern was that if the PA succeeded, Israeli violence in the West Bank and Gaza might be found to fall under the ICC’s jurisdiction. “The ICC is of course something that we have been absolutely adamant about,” Power told Congress at the time. “Secretary [of State John] Kerry has made it very, very clear to the Palestinians. … I mean, this is something that really poses a profound threat to Israel.”
Power’s cheering on Sudan for “ending impunity” is an expression of truly staggering hypocrisy.
Even as Power assiduously worked to prevent any accountability at the ICC for Israel — our client state — she vociferously condemned Russia for protecting Syria — its client state — from the court. After Russia vetoed a French resolution at the U.N. Security Council that would have referred Syria and its regime to the ICC, Power delivered a long, emotional speech on the subject. “Sadly, because of the decision by the Russian Federation to back the Syrian regime no matter what it does,” Power declared, “the Syrian people will not see justice today. … Our grandchildren will ask us years from now how we could have failed to bring justice to people living in hell on earth.”
Next up was the Trump administration, which, if anything, loathed the ICC more than Bush officials did. In 2020, Trump signed an executive order imposing sanctions on top personnel at the court and revoked the entry visa to the U.S. of its chief prosecutor.
That brings us to the Biden administration. Biden quickly lifted Trump’s sanctions against the ICC. But Secretary of State Antony Blinken has announced blanket American opposition to current ICC investigations that include Israel and the U.S. (Rep. Ilhan Omar, D-Minn., was targeted with a firestorm of bipartisan criticism for asking him a basic, reasonable question about this.) Overall, the Biden administration is, if anything, cooler toward the court than Obama’s.
Power’s cheering on Sudan for “ending impunity” is therefore an expression of truly staggering hypocrisy. Clearly in Power’s view, accountability is, as New York real estate developer Leona Helmsley once famously said about taxes, for “the little people.”