The Libyan affair became a choreographed farce on June 27, with the International Criminal Court (ICC) issuing arrest warrants for Muammar Qaddafy, one of his sons, and his chief of military intelligence. This move is a carbon copy of The Hague Tribunal for the Former Yugoslavia (ICTY) indicting Slobodan Milosevic for war crimes at the height of NATO’s bombing campaign against Serbia in 1999. In both cases a transnational court of dubious legitimacy, controlled and financed by the intervening powers, acted on cue to provide retroactive justification for an illegal and unprovoked act of military aggression.
The chief prosecutor of the International Criminal Court Luis Moreno-Ocampo called on Qaddafy’s closest aides to become “part of the solution in Libya” by deposing him. “Justice will be done,” he declared at the court’s headquarters at The Hague. ICC judge Sanji Mmasenono Monageng had already explained that “evidence submitted to Ocampo”—she did not disclose the identity of the submitter(s)—was enough to establish “reasonable grounds to believe” the three were guilty of murder, the persecution of civilians, and “crimes against humanity.”
The statements by Their Honors emanating from their virtual world would be as irrelevant as the fatuities of Bertrand Russel’s Vietnam “tribunal” 45 years ago, were it not for the fact that their “warrants” will be used in the manner that has destructive political and military consequences. State Department spokeswoman Victoria Nuland promptly announced “the U.S. believes that the decision to refer the case to the ICC was the right decision” and that “Qaddafy’s got to take the message that it’s time to go.” White House spokesman Jay Carney called the decision “another step in this process of holding him accountable.” Over in Brussels the EU foreign policy chief Catherine Ashton declared that the “the European Union fully supports the International Criminal Court, which plays a key role in the promotion of international justice.” This means that Qaddafy’s removal—decided upon in London, Paris and Washington long before the limited UN Security Council authorization for “protecting civilians” was adopted in March—now has ex post facto international legitimacy. This is on par with the Nazi government decreeing on July 2, 1934, the Staatsnotwehrgesetz (the Law on State Self-Defense) which retroactively “legalized” the Night of the Long Knives two days after the bloodbath.
Back in 1999 Louise Arbour’s ICTY indictment convinced Milosevic of the need to stiffen resistance to NATO and encouraged the Albanians to escalate the KLA campaign of terror. In Libya Qaddafy will be more determined than ever not to end up like Milosevic and the insurgents will be equally determined not to seek a compromise solution, now that their Western mentors have upped the ante to the point where third-party mediation efforts are meaningless.
That the Obama Administration is enthusiastically supporting the actions of the ICC reflects not only the immediate political utility of the latter’s decisions but also the fact that the liberal-hawk sisterhood in Obama’s inner circle (Hillary Clinton, Susan Rice, Samantha Power), and their allies in the academia and the State Department bureaucracy, are intent on the United States signing on to The Rome Statute establishing the ICC. They do not worry about having a court that could theoretically prosecute American officials for pursuing American policies: who pays the piper calls the tune.
The liberal hawks’ preferences are unsurprising. Just as their “humanitarian interventionism” is the antithesis of traditional American foreign policy principles, the “evolving” system of transnational criminal justice—of which the ICC is the flagship—is the antithesis of fundamental American precepts and constitutional principles of sovereignty, checks and balances, and national independence. The ICC is outside any “constitutional” design that delineates how laws are made, adjudicated, enforced, or made accountable. As the former U.S. Ambassador to the United Nations John Bolton summed it up in 2002, in the ICC’s central structures such political checks are either greatly attenuated or entirely absent: “They are effectively accountable to no one. The Prosecutor will answer to no superior executive power, elected or unelected. Requiring the United States to be bound by this treaty, with its unaccountable Prosecutor and its unchecked judicial power, is clearly inconsistent with American standards of constitutionalism.” Yet the Bush Administration weakened this principled position by supporting the development of ad-hoc hybrid institutions that incrementally legitimized the transnational judicial machinery.
The power of the ICC prosecutor to act without third-party restraint and to claim universal jurisdiction offers the scope for considerable legal creativity, depending on the will of the prosecutor’s political masters. The foundation of the edifice is the ideology of universal human values, of a common political and legal culture for the whole world. It is the enemy of liberty as understood and practiced in the West for centuries, a menace on par with the shadow of Jihad. Its proponents are invariably also the upholders of multicultural diversity, anti-discriminationism, open immigration &c. The moral absolutism at the core of the ICC world view is immoral. The ICC enthusiasts’ disdain of the principle of sovereignty may be motivated by their genuine conviction that the war against the Westphalian order is just, but their sincerity is as relevant as that of the suicide bombers in Peshawar.
Qaddafy’s “arrest warrant” confirms that the more arrogant the doctrine behind the ICC, the greater the willingness of its creators and puppeteers to lie for the truth. The transparent predictability of the process is comical in a dark way, but derisive laughter is out of place. The progression of an uncured malignancy is equally predictable, equally unfunny, and equally fatal in its final consequences.
Dr. Srdja Trifkovic, Foreign Affairs Editor of Chronicles, is the author of The Sword of the Prophet and Defeating Jihad.