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I have blogged on this before and had the honor and privilege of asking Ambassador Bolton the question:  Could the ICC arrest Gadhafi when Libya did not ratify the Rome Treaty?  Won’t this place US officials at risk?  The ambassador said yes the ICC will be used against us.

Today, the ICC did issue an arrest warrant for Libyan leader Gadhafi and two other leaders.  Here is the introduction from the Washington Post:

The International Criminal Court has issued arrest warrants for Libyan leader Moammar Gadhafi, his son and his intelligence chief for crimes against humanity in the early days of their struggle to cling to power.

There is one small, tiny problem with all this jurisprudential activity.  Libya did not agree to the Rome Treaty.  The leaders of Libya, however evil they may be, elected NOT to place themselves under the jurisdiction of the Treaty or the Court.  Nor has the USA.

The UN resolutions governing this sordid episode do not require or refer the matter to the ICC for prosecution.  (That is assuming the UN Security Council has the authority to try and jail individuals; I do not accept that.  If so, where does the power come from?  The nations that organized and joined the United Nations?  I suspect that was not what the US bought into when we ratified the UN Charter in 1945!)  Absent that, the ICC simply has no jurisdiction or authority to arrest the leader of a nation that did not agree to be bound by the Rome Treaty.

I pray that our administration does not become a willing accomplice to an illegal arrest and detention.  It’s a bad precedent.  Someday, it may be one of our leaders or a soldier serving his or her nation brought before a foreign court to face charges.  Examine these words from our Declaration:

He [George III] has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation:

And these:

For depriving us in many cases, of the benefits of trial by jury:

For transporting us beyond seas to be tried for pretended offenses:

God forbid this trial ever happens in my lifetime!  Congress should limit any war authority in Libya to forbid the arrest or detention or rendition of any Libyan national to a court that nation did not recognize.

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)


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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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