Obama courts disas­ter

The Washington Times Weekly - - Editorials -

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 June 27, ICC judges granted war­rants for Col. Gad­hafi, his son Seif alIs­lam 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 Clin- ton, 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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