Does Obama Support the ICC? (And What is Samantha Power Thinking?)

Just in case there is some blogger fairness doctrine I don’t know about, I should mention that Obama seems to generally favor the ICC — though he obviously has reservations about U.S. membership.  Here is his clearest statement, made last October:

Now that it is operational, we are learning more and more about how the ICC functions. The Court has pursued charges only in cases of the most serious and systemic crimes and it is in America’s interests that these most heinous of criminals, like the perpetrators of the genocide in Darfur, are held accountable. These actions are a credit to the cause of justice and deserve full American support and cooperation. Yet the Court is still young, many questions remain unanswered about the ultimate scope of its activities, and it is premature to commit the U.S. to any course of action at this time.

The United States has more troops deployed overseas than any other nation and those forces are bearing a disproportionate share of the burden in the protecting Americans and preserving international security. Maximum protection for our servicemen and women should come with that increased exposure. Therefore, I will consult thoroughly with our military commanders and also examine the track record of the Court before reaching a decision on whether the U.S. should become a State Party to the ICC.

Generally encouraging — until we consider a bizarre comment Samantha Power made when she was still one of Obama’s senior foreign-policy advisers:

Until we’ve closed Guantánamo, gotten out of Iraq responsibly, renounced torture and rendition, shown a different face for America, American membership of the ICC is going to make countries around the world think the ICC is a tool of American hegemony.

If Barack Obama ratified the ICC or announced his support for it on day one, two things would happen. One, it would have the chance of discrediting the ICC in the short term, and two, he would so strain his relations with the U.S. military that it would actually be very hard to recover. There’s a whole lot of internal diplomacy, internal conversations about sovereignty and so forth that have to be had before you can think about that.

I’ll grant Power — whose work I adore, and for whom I have the utmost respect — the second scenario. But the first one?  Is she kidding? The U.S. has been the ICC’s most bitter critic, refusing to ratify a Statute it played a critical role in drafting, launching a multi-year blackmail campaign to force States to sign Article 98 agreements, and even authorizing the use of military force against the Hague should an American ever end up in the dock there.  Joining the ICC would thus not only demonstrate to the world that the U.S no longer thinks it is above the (international) law, it would legitimize the Court in the eyes of its member States and — perhaps even more important — indicate to other ICC critics, such as Israel and Russia, that their opposition is unwarranted.  Indeed, one could easily argue without too much hyperbole that U.S. membership in the ICC would be the single most momentous event in the brief history of the Court, literally heralding the dawn of a new era for international criminal justice.

The U.S. deserves the criticism it gets for its irrational hostility to the ICC.  But we cannot forget that, over the past six decades, the U.S. has done as much as any country in the world to promote international criminal justice.  That’s why the U.S. position on the Court is so distressing — and why a U.S. decision to join the Court would be cause for lasting celebration.