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I am no friend of the International Criminal Court.  It is an attempt to gain the power to try and jail those who commit heinous acts and there is a serious question about jurisdiction (power) and legitimacy.  I do not intend to EVER support any system where at some point in time foreigners try Americans.  It is wrong and unconstitutional.

It appears the ICC will seek an indictment of Libyan leaders, including Gaddafi, for war crimes.  I am reasonably sure Gaddafi is guilty of war crimes.  The new Libyan regime could certainly consider a trial.  (There may be issues of the ex post facto application of laws and issue of how to ensure reliable testimony but there is certainly power in Libya to try Gaddafi.)  But the ICC should not have power to try the Libyan leaders for one key reason:  Libya did not sign or ratify the Rome Statute that established the ICC.  Nor did the USA (President Clinton signed the ICC but never sent it to the Senate; Bush revoked that signature and no further action has been taken.  Of course, the present administration supports the ICC although it has made the usual statements to protect soldiers!) and thus there is NO jurisdiction for the ICC to act against Libyan officials.  Even the UN Security Council resolution referring the Libyan matter to the International Criminal Court (agreed to by the US) admits that non-signers have no obligation to enforce the ICC’s action (emphasis mine):

ICC referral

“4.   Decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;

“5.   Decides that the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor;

“6.   Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State;

“7.   Invites the Prosecutor to address the Security Council within two months of the adoption of this resolution and every six months thereafter on actions taken pursuant to this resolution;

“8.   Recognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily;

The US should take the position that while it supports the rights of the new Libyan regime to try Gaddafi or others, it cannot support a referral of the nationals of a non-member of the ICC to the court.  It is unconstitutional for the US to give the ICC that kind of power.  It sets a bad precedent; the next time, the ICC could seek an indictment of George W. Bush or even President Barack Obama say for ordering the killing of bin Laden.  The United States should not endorse ANY efforts by the ICC and should rather support sovereign nations’ struggle against it – such as Kenya’s attempt to stop ICC meddling in its internal affairs.

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. Jeremy says:

    A few criticisms:

    -You want this fair, unbiased and civilized court to leave a very rich, powerful, and most important of all, EVIL man to be tried by his decaying country of residence? I don’t want to see the outcome of that.

    -You don’t trust foreigners? What kind of car do you drive? I hope it’s not one of those crappy Ferraris or BMWs. How about the computer or other device you typed this rant out on? Chinese parts almost guaranteed. I bet your typical conservative brain still doesn’t understand that this “great country” was built by foreigners…y’know…IMMIGRANTS?

    -Of course Bush withdrew our pen from signing something working to ensure that basic human rights are upheld. He is guilty of sending hundreds of thousands (mostly innocents) to their graves on known false evidence. The rule was simple: No threat, no war. He waited for his impunity to be granted, unleashed shock and awe, and took the oil.


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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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