OPINION:
The Obama administration is backing the International Criminal Court’s (ICC) arrest warrants for Libyan leader Moammar Gadhafi. It is a dangerous precedent for the United States to rush to affirm the jurisdiction of this relatively new international body, particularly with a president whose counterterrorism strategy has made his name synonymous with “targeted killing.”
On Monday, ICC judges granted warrants for Col. Gadhafi, his son Seif al-Islam and regime intelligence chief Abdullah Sanussi. The court said there were “reasonable grounds to believe” that the trio were “criminally responsible as indirect co-perpetrators” of the murder and persecution of civilians. The White House hailed the warrant against Col. Gadhafi as “another step in [the] process of holding him accountable.”
There’s no argument that the Gadhafi regime has been a consistent human rights nightmare, but the United States should not encourage the use of an unaccountable, international group of judges to serve as an agent of regime change. The ICC’s jurisdiction runs roughshod over traditional notions of state sovereignty. The fact that Libya is not a signatory to the 1998 Rome Statute that established the court is no barrier to ICC action; it has authority granted by the United Nations under Security Council Resolution 1970. Article 27 of the ICC Treaty states that sovereign immunity does not apply to the head of state. The precedents for this were set with the 1999 indictment against former Yugoslav leader Slobodan Milosevic and the 2003 indictment of President Charles Taylor of Liberia. There is ICC paper out on President Omar al-Bashir of Sudan.
The United States also is not an ICC signatory state. In 2000, President Clinton, the master of triangulation, signed the treaty but did not send it to the Senate for ratification. The Obama administration has worked with the court but also has not pressed for ratification. As the Libya precedent demonstrates, that would not stop the ICC from extending its jurisdiction over the United States if the U.N. so directed.
That’s why it’s a bad idea to empower international bodies with legal authority outside of the traditional framework of state sovereignty. It is easy to imagine scenarios in which left-wing lawyers would seek to take action against former members of the George W. Bush administration. In 2010, American law professor Francis A. Boyle of the University of Illinois College of Law in Champaign, filed a complaint with the ICC prosecutor against Mr. Bush, Dick Cheney, Donald H. Rumsfeld, George Tenet, Condoleezza Rice and Alberto Gonzales for “their criminal policy and practice of ’extraordinary rendition’ perpetrated upon about 100 human beings.” The dirty little secret is that renditions have continued - and some sources say increased - under the Obama administration. This, combined with the questionable legality of drone strikes under international law, could come back to haunt the White House if the ICC continues to expand its authority.
ICC action against the regime in Tripoli fits well with Mr. Obama’s “lead from behind” strategy, if it can even be called a strategy. In seeking to evade responsibility or having to face hard challenges, the White House is content to let the ICC take the forefront even at the expense of U.S. sovereignty and influence. It wants the war that is not a war to be settled by a court that is not a court.
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