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This article describes the logistical nightmare the arrest of the Libyan leader Gaddafi and two associates by or on behalf of the International Criminal Court.  It’s a doozy.  Basically, the question is will the international community assist the ICC in its pursuit of the Gaddafi gang.  Maybe the Libyans will betray him.  Maybe a third nation will accept him – one like Venezuela who is not a member of the ICC regime (The one good thing Pres. Chavez has done!).  Arrest will require troops and military action.  Let me make some observations:

First, the Security Council has not adopted a resolution to require all governments to enforce the ICC arrest warrants related to Libya. (It has not done that for its 2005 referral of Sudan to the ICC, either.) For now, upon request by the ICC, only the 114 member states of the ICC would be obligated to arrest a person subject to an arrest warrant and transfer him or her to The Hague. Other countries could do so as a courtesy. This leaves Qaddafi with dozens of possibilities for a safe haven, such as Saudi Arabia, Venezuela, or any number of African countries led by a friend of Qaddafi.

Either the US support for or enforcement of this hypothetical UN resolution would be unconstitutional.  The Constitution is the supreme law of the land (to paraphrase John C. Calhoun’s famous toast, next to the Bible most dear!) and for us to take action which requires this government to assist in the arrest of anyone and hand over to the ICC would place us as accomplices in an organization we do not recognize.  We cannot bind others to render such assistance either.

This support is also an illegal arrest:  Libya has not ratified the ICC.  How can the UN or the US assist in that arrest?  We neither recognize the ICC nor did Libya do so.  The precedent is set for US officials to be tried in the ICC under the UN Security Council’s blessing.  But we can veto the resolution calling for indictment of the hypothetical US officials?  But maybe not:  The UN Charter requires an affected nation to abstain from any vote affecting it directly:

Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.  (UN Charter Article 27, section 3)

Chapter VI is the peaceful resolution of disputes between nations.  That’s the role of the UN Security Council, in fact the UN itself!  We would have to abstain from the vote to recommend say former President George W. Bush for indictment by the ICC.  What if Great Britain or France decided not to bail us out?

So, the US and NATO will be participating in an illegal arrest without Security Council authority or ICC authority to a court that has no real legitimacy.  This is outrageous.

There is also mission creep:

In contrast, NATO seems thrilled by Moreno-Ocampo’s request. On Tuesday, NATO’s spokesperson, Oana Lungescu, said, “The evidence that the prosecutor has gathered is a stark reminder of why NATO is conducting operations in Libya.” Using even stronger terms, she said, “It’s hard to imagine that a genuine transition in Libya can take place while those responsible for widespread and systematic attacks against the civilian population remain in power.” In other words, ICC warrants would provide political support to NATO’s operations; less clear, however, is whether NATO will pay the favor back and expand its mandate from ending attacks on civilians and enforcing a no-fly zone to include arresting the three Libyan suspects.

NATO cannot bind the US to war without its consent; that requires at the VERY LEAST the consent of Congress or an authorization form Congress for the President to go to war to arrest Gaddafi.  Otherwise, that would involve the US in actions not authorized by the Constitution.  The result could be mission creep – boots on the ground to enforce the ICC indictment (Compare this to the use of force – which I opposed – to capture Manual Noreiga in Panana.  At least that was based on a court of competent jurisdiction under the Constitution of the United States.)  The boots on the ground would have to maintain order and keep the rebels from their own bloodbath of Gaddafi loyalists.  We might then have to rebuild the nation of Libya – of course the oil must resume flowing right away.  Of course, this is paid for with debt from China while our own infrastructure decays and our debt mounts.  Medicare goes broke but Libya has good roads!

It is crucial to restate again that neither Libya nor the United States have ratified the Rome Statute that established the ICC.

We know that the ICC is beginning to meddle in internal affairs:  The Kenya example is one example.  The Lord’s Army indictments could be another.  What if there was violence in the United States after a disputed election and those in charge of law and order are accused of excessive force – or racism in the use of force?  A local police chief or a state police commander or a National Guard adjutant or a governor could be indicted by the ICC and the US could not block it – because of the requirement to abstain from the vote!

We must not do anything to strength the power of the International Criminal Court.  Rather let’s act to destroy it.  It is an evil institution that will someday destroy our sovereignty and the sovereignty of the Constitution over the United States of America.  We must not encourage the indictment or arrest of the Libyan officials by the ICC nor can we assist in that arrest.  It’s illegal and unconstitutional.

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)


  1. Greg L says:

    Over the past few decades the US has undermined a key tenet of international law known as the “Act of State Doctrine.” The idea was that all domestic actions by a nation cannot be questioned by a foreign court. Corollary to that principle is that the sovereign of a state’s actions are considered official action by that state and no foreign court can try to hold a foreign leader responsible for what they do in their official capacity as head of state, even when those actions are executed externally. During the 20th Century we’ve picked away at this longstanding principle of international law and as a result entities with no legal jurisdiction over the domestic affairs of a sovereign state are now trying to invent law in order to hold foreign heads of state legally liable for a variety of invented infractions.

    However noble the intent has been (think Nuremburg, the ‘arrest’ of Manuel Noreiga, etc.) it has thrown international jurisprudence into complete chaos. No one knows if and when some random foreign leader is going to be dragged into a special court somewhere and tried ex post facto for newly invented crimes codified by no legitimate legislative body answerable to any electorate. The only restraint on this behavior is whether those trying to ‘arrest’ a current or former head of state have the raw military power necessary to effect an arrest and survive any reaction to that arrest.

    Defendants in such cases are uniquely charged with crimes that don’t exist within the jurisdiction where the supposed crimes occurred, tried under procedures that are alien to those jurisdictions, and in every case convicted and jailed in a foreign jurisdiction with no actual opportunity for appeal or other judicial review.

    This is not the rule of law, but the law of the jungle that has been prettied up a bit to make unrestrained vengeance palatable to public opinion.

    It may seem bad to let some foreign dictator get away with atrocities, but they need to be held to account only by the people of the country where those atrocities were committed. If that country fails to do so, it is not anyone else’s business to manufacture some creative opportunity to do it for them. Similarly no country should ever countenance becoming a sanctuary for a head of state fleeing the people he ruled in an attempt to evade whatever justice they might want to deliver.

    We as a nation have thrown away centuries of well established precedent in international law and opened ourselves up to all the negative consequences this creates. This can be fixed, but I’ve yet to see a modern administration disavow the opportunity to get what they want despite the law, rather than ensure justice under it.


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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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