Unsurprisingly, after the UN Security Council referred the Libya situation to the International Criminal Court (ICC), John Bolton took the opportunity to criticize the ICC and, more generally, international law itself.
He dubs the ICC “one of the world’s most illegitimate multilateral institutions,” argues that the threat of ICC prosecution will not alter Gadhafi’s behavior, and asserts that history demonstrates that leaders “are not deterrable by the flimsy threat of eventual prosecution.” Furthermore, he continues, Libya, and Libya alone, should be responsible for dealing with Gadhafi’s crimes, for this will be a part of a process of “[p]olitical maturation” similar to what the “Iraqis did with Saddam Hussein.” And more broadly, the ICC referral demonstrates that Obama is committed to “a passive, legalistic America, deferring to international bodies…”
As for the ICC’s alleged illegitimacy, this certainly doesn’t hold true for Americans, a large majority of whom have believed the United States should support the court since its inception in 1999. As of 2008, 68% of Americans thought the United States should participate in the Rome Statute that established the court. As for whether the threat of prosecution can affect a leader’s decision-making, how can Bolton completely discount the ICC and, in the same article, praise the United States for striking over a hundred bilateral immunity agreements that shield U.S. citizens from ICC prosecution? Doesn’t it seem like the reason the bilateral immunity agreements were such a good idea, at least according to Bolton, is that they allow U.S. leaders to make decisions free from the threat of prosecution? If the ICC poses no true prosecutorial threat, why was it so important for the U.S. make these agreements? Could it be because… the prosecutorial threat of the ICC is more powerful that Bolton cares to admit?
Moreover, it seems as though the Libyan rebels support the ICC referral. The idea is not necessarily to alter Gadhafi’s decision-making calculation but rather to alter those of his subordinates. The threat of prosecution could put pressure on his officers to act with restraint or abandon Gadhafi altogether. And as for the comparison to what Iraqis did to Saddam Hussein… Well… How’s Iraq’s political maturation coming long?… In the past couple weeks, there’s been an attack on the country’s largest oil refinery, a suicide attack that killed 12 police officers, protesters setting governmet buildings on fire, Kurdish security guards shooting at protesters and killing two, and a suicide bombing that killed 36. Is Iraq really such a great example of a process of political maturation?
As for Bolton’s claim that Obama is bent on a “passive, legalistic America,” I see no truth to this claim either. The Obama administration has expressly stated that the United States will not join the ICC any time soon, they adamantly opposed the ICC’s endeavor to activate its jurisdiction over the crime of aggression, they’re engaged in a legally questionable (if not certainly illegal) targeted killing program, and Obama’s 2010 National Security Strategy did not say that the United States would adhere to international law but rather that it would simply “seek to” do so.
As you can imagine, I won’t be campaigning for Bolton in 2012.
