Such a clause, however, carries no absolute guarantee that no attempt would be made to draw the U.S. military, or any of its affiliates (i.e. contractors) into some legal or prosecutorial battle. The complexities of military action are too wide and deep for such a guarantee – a type of assurance that has never been tested before in international law.
The affirmative vote by the Obama administration – as opposed to an abstention – also sets difficult diplomatic and legal precedents for the future of this and subsequent U.S. administrations. The United States has no say in the organization and make-up of the ICC and has no business deciding its actions. For instance, any decision by the ICC to prosecute Gadhafi and bring him before the Court would require enforcement the United States would be expected to support.
On the diplomatic front, with its vote of support the United States is allowing – arguably prematurely – the interjection of a legal party into a domestic conflict that is largely political. Atrocities may have been committed indeed, but a legal prosecution now – or even a threat of one – may undermine diplomacy and the political process. With an ongoing conflict on the ground full of political, civil, tribal and military complexities, the most hope for a way out lies within the political process, if not military action – certainly not legal prosecution.
To that effect, ICC prosecutor Mr. Moreno-Ocampo is not a friend of the political process. The Obama administration, in fact, has now actively helped turn over enormous power to an independent and, arguably, overzealous criminal prosecutor – one who has overreached before and has a tendency to ‘shoot from the hip’.
Mr. Moreno-Ocampo has little tact for diplomacy and sees his mandate virtually without limits. His own staff has been reprimanded before by the judges on that same court and there have been calls for his disqualification. In a delicate political situation such as Libya, Mr. Moreno-Ocampo and his office could easily become a liability for the UN.
The U.S. delegation ‘yes’ vote at the UN in support of ICC action in Libya does not serve any American interests – or any on the behalf of the Libyan people for that matter. But it does fit well within the ideological framework of the Obama administration.
President Obama is someone who believes in multilateralism and decreased American unilateral leadership and influence on the world stage. The U.S. vote in support of ICC investigation and possible prosecution of Libya’s Gadhafi actively supports that vision.
Nino Saviano is a Republican strategist and president of Savi Political Consulting. He has lectured on global politics at universities in the United States, Europe and Asia. Nino can be followed on Twitter @ninosaviano