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.
Follow me on Twitter @columlynch
The U.N. General Assembly today formally extended Navi Pillay's term as U.N. High Commissioner for Human Rights for another two years.
But not before House Foreign Affairs Chair Ileana Ros-Lehtinen (R-FL) and Rep. Elliot Engel (D-NY) fired off an angry letter calling on the Obama administration to "publicly and strongly oppose" Pillay's extension, saying she has been too soft on China, Syria, and other rights violators and has "repeatedly demonstrated bias against the State of Israel."
The request, contained in a letter to Susan Rice, the U.S. ambassador to the United Nations, came hours before the U.N. General Assembly decided to approve a recent recommendation by U.N. Secretary General Ban Ki-moon to keep Pillay on the job for another two years.
The broadside by Pillay's congressional critics highlighted the displeasure with she's viewed by key backers of Israel in Washington.
The Obama administration, meanwhile, withheld any public statement on Pillay's extension. U.S. officials privately expressed disappointment with her handling of Israel, but noted that her performance has improved since the Arab Spring, particular with her harsh criticism of Syria. "Over the next two years we will continue to encourage High Commissioner Pillay to speak out on human rights violations wherever they may occur, and to address ongoing shortcomings in the Office for the High Commissioner of Human Rights' works, " a U.S. official, who declined to speak on the record, told Turtle Bay.
In contrast, European governments offered a robust vote of confidence in Pillay. Britain's human rights minister, Jeremy Browne, welcomed Pillay's reappointment, saying the "United Kingdom strongly supports the role of the High Commissioner and her Office, who lead efforts to promote and protect human rights throughout the world. The struggle for human rights is continuous. The High Commissioner's role is critical and entails enormous responsibilities: helping prevent human rights violations wherever they occur, encouraging respect for human rights by all States, and strengthening the ability of the UN system as a whole to act.
Pillay also received the backing of Philippe Bolopion, the U.N. director of Human Rights Watch, who said, "Some of the attacks against Navi Pillay seem misguided and portray her record unfairly. While she could do more to raise the public profile of her office, she has been a key champion of human rights in the Arab spring, Ivory Coast and beyond."
A former judge in South Africa and on the International Criminal Court, Pillay was appointed the U.N.'s top human rights job in September 2008, serving out a four-year term that was scheduled to expire in the fall. Some U.N. officials said that Pillay had sought a second four-year term, but was rebuffed by Ban, while others said that she had asked Ban for only two, citing exhaustion with the job.
Pillay's office declined a request for comment.
Follow me on Twitter @columlynch
U.N. Secretary-General Ban Ki-moon has touted his efforts to impose a 3 percent cut in the U.N.'s budget as a sign of the U.N.'s commitment to fiscal austerity.
Then the raises came. On Aug. 1, the U.N.'s International Civil Service Commission -- a body of independent experts appointed by governments -- granted a 3 percent salary increase, or cost-of-living adjustment, to more than 4,800 U.N. staff who work in New York City.
The United States, which had praised Ban's earlier cost-cutting initiative, protested the decision, noting that that American federal civil servants have been denied cost-of-living adjustments -- called "locality pay" -- since 2010.
"My government is deeply concerned by the decision … to increase the post adjustment index in New York and strongly objects to this increase," wrote Joseph Torsella, the U.S. ambassador to the United Nations for management and reform, in a letter to the United Nations. "Such a raise is inappropriate at this time of global fiscal austerity measures such as layoffs, service reductions, revenue increases, and reductions in pay and benefits for civil servants."
The letter comes as the U.N. has been announcing layoffs of U.N. workers, including a group of broadcast engineers, who were let go earlier this month. It comes several days after a reporter from Fox News posted a story about the salary increase.
The secretary-general's office offered a clarification. "It was a decision by the International Civil Service Commission, whose members are elected by the member states, not a decision by the SG," said Vannina Maestracci, a spokeswoman for Ban.
"While we have the highest regard for the many dedicated professionals in the UN system, in these difficult times we must -- at a minimum -- forgo salary increases," Torsella wrote. "Failure to do so could well lead to more draconian approaches to budget-balancing in the future."
Follow me on Twitter @columlynch
On Wednesday, Turtle Bay posted a story, based on a previously unpublished U.S. diplomatic cable obtained through WikiLeaks, claiming that an official from the European Commission, Yves Horent, passed on information suggesting that high level U.N. and EU officials predicted that Pakistan's foreign minister was destined to become U.N. secretary-general in 2007.
According to the cable, Horent told the Americans that Antonio Guterres, the U.N. High Commissioner for Refugees, and Louis Michel, the former European Commissioner for Humanitarian Aid and Civil Protection, predicted that Kurshid Mehmood Kurasi, was certain to get the job. The prediction turned out, of course, to be flat wrong. The then U.N. South Korean Foreign Minister Ban Ki-moon was already well on his way to firming up support for top U.N. job, and the Pakistani never even emerged as a candidate.
But Horent, who didn't initially respond to an email request late Tuesday for comment, since sent me an email this morning insisting that the American drafter of the cable is dead wrong, and that he couldn't even name the former Pakistan diplomat until he received my email and read the story on my blog.
"I am rather surprised by this information that is plainly wrong," said Horent. "Whoever wrote the cable you are referring to was obviously misinformed and /or confused."
"I never gave any briefing to the U.S. Embassy of this kind of political or diplomatic issues," Horent wrote. "My dialogue with the U.S. Embassy in Dar Es Salaam was sporadic and strictly limited to refugee matters in Tanzania, which was then part of my work. I do not recognize the name of the person I am supposed to have communicated with the U.S. Embassy, where my contacts were limited to the refugee coordinator."
Horent said that Guterres and Michel, who did not respond to requests for comment this week, had indeed visited Tanzania at the time, but that their visit "was entirely focused on humanitarian issues. U.N. appointment matters were not discussed. I did not even know who was Mr. Khurshid Mehmood Kasuri until a few minutes ago when I carried out a quick internet search!"
Follow me on Twitter @columlynch.
The U.N. has appointed a World Bank investigator with experience probing war crimes and fraud abuses from the Democratic Republic of the Congo to the Balkans as head of the U.N.'s premier internal anti-fraud unit, filling a personnel vacuum that has dampened morale and severely hampered the U.N.'s ability to combat corruption within its own ranks, according to internal U.N. memos obtained by Turtle Bay.
Carmen La-Pointe, a Canadian auditor who heads the U.N. Office of Internal Oversight (OIOS), announced the hiring of Australian investigator, Michael Stefanovic, in an internal memo obtained by Turtle Bay. She also announced the hiring of an American national, Dr. Deborah L. Rugg, to head up another Inspection and Evaluation division. Stefanovic will start up the job in August.
U.N. and U.S. officials hope the arrival of new team will bring stability and purpose to a department that has been plagued leadership gaps and severe staff shortages that have hampered the U.N.'s ability to police a far flung empire of political, humanitarian, and peacekeeping missions. The breakdown in the U.N.'s investigations division has posed political risks for the U.N. Secretary-General Ban Ki moon, who has faced criticism for doing too little to rein in corruption and reform the global instution, and the United States, which had faced criticism for moving too slowly to appoint a high-level U.S. management official to oversee U.N. reform efforts.
"The United States had previously raised concerns about the performance of the investigations division in particular, and we had urged it to more vigorously pursue fraud and misconduct," Joseph Torsella, the recently appointed U.S. ambassador for U.N. Management and Reform, said in a statement that was provided to Turtle Bay. "OIOS is poised to become the strong and independent watchdog it was intended to be."
A former Australian policeman, Stefanovic has served since 2006 at the World Bank, where he is currently manager of the External Investigations Unit, which investigates cases of fraud and corruption in the organization's global operations.
He previously worked as OIOS's chief resident investigator in Ivory Coast, Burundi, and the Democratic Republic of the Congo. Before that, between 1999 and 2003, Stefanovic was employed as a war-crimes investigator with the International Criminal Tribunal for the Former Yugoslavia. He also participated in a 2004 U.S. State Department mission that traveled to Chad, near the Sudanese border, to document allegations of genocide arising from the conflict in Darfur.
The U.N. internal investigations division has been hobbled by leadership lapses almost since OIOS was established in 1994 as a kind of inspector general's office. In 2007, an outside consultant claimed that the management culture in the investigations division was so dysfunctional that it should be shut down. The investigations unit has not had a permanent director since 2006, when its American chief, Barbara Dixon, stepped down.
Inga-Brit Ahlenius, a Swedish auditor who previously headed OIOS, sought to hire a highly regarded former U.S. District Attorney, Robert Appleton, for the post. Appleton, who served as the temporary head of a U.N. procurement task force, carried out some of the most aggressive anti-corruption probes in the U.N.'s history. But he also provoked the ire of influential governments, including Singapore and Russia, whose nationals were targeted by the task force.
Appleton's appointment was blocked by Ban's office on the grounds that Ahlenius had violated recruitment procedures that required female candidates be included on a short list of prospective candidates. Ahlenius countered that Ban has interfered in the independence of her office by preventing her from selecting her top deputies. Appleton has since gone on to file a discrimination grievance against the U.N. for blocking his appointment.Follow me on Twitter @columlynch.
Longtime Washington Post correspondent Colum Lynch reports on all things United Nations for Turtle Bay.