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March 1, 2011 1:04 pm

A United Nations Court For Gaddafi?

avatar by John Bolton

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President Obama has trumpeted Saturday’s U.N. Security Council decision to refer Moammar Gadhafi to the International Criminal Court (ICC) for prosecution. Although Gadhafi deserves punishment, the ICC will not accomplish it. Invoking this marginal organization as an instrument of justice is simply an abdication of responsibility. It pretends to an address an international crisis while actually doing the opposite.

The ICC is one of the world’s most illegitimate multilateral institutions. The court’s vast prosecutorial authority is unaccountable to any democratic polity. Americans rejected this approach at our founding, separating the prosecutorial and judicial powers and placing the prosecutors under elected executive branch officials to ensure accountability and legitimacy. The Bush administration wisely reversed the Clinton administration’s endorsement of the ICC by “unsigning” its foundational treaty in 2002. It then secured more than 100 bilateral agreements to prevent U.S. citizens from being transferred into ICC custody.

To date, the ICC has been weak and ineffective, essentially acting as a European court for African miscreants. Nonetheless, its prosecutor is an international version of our own post-Watergate “independent counsel” model. Based on the execrable record of these prosecutors, the U.S. Congress, with broad bipartisan support, allowed the law authorizing the appointment of these counsels to sunset in 1999, although there has been sporadic resort to such procedures since.

Under whatever guise, the independent-counsel approach has led to gross miscarriages of justice, such as Patrick Fitzgerald’s 2003-07 investigation of how Valerie Plame’s CIA employment became public. In that case, one target, Scooter Libby, was pursued into the ground while others more culpable were allowed to emerge unscathed.

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Champions of the ICC theorize it will deter future crimes. Reality proves otherwise. The court has been operational since 2002, so the most persuasive evidence is that almost 10 years after the court’s inception, Gadhafi was sufficiently unimpressed that he is doing what comes naturally for terrorists and dictators. History is full of cases where even military force or the threat of retaliation failed to deter aggression or gross criminality. If the West is not prepared to use cold steel against Gadhafi, why should he or any future barbarian worry about the ICC?

.The plain if deeply unpleasant fact is that history’s hard men are not deterrable by the flimsy threat of eventual prosecution. This underlines why the court itself is so otherworldly. It does not operate in a civil society of shared values and history, but in the chaotic, often brutal realm of international politics. Resorting to the ICC cannot change matters of international politics and power into matters of law.

A new Libyan government should be responsible for dealing with Gadhafi’s atrocities. Every crime he is responsible for, from the terrorist bomb that destroyed Pan Am Flight 103 over Lockerbie, Scotland, in 1988, to his current street massacres, has been done in the name of the Libyan people. They are the ones who should judge Gadhafi, as Iraqis did with Saddam Hussein.

Gadhafi’s fate will raise hard questions for any successor Libyan government. But it is entirely appropriate that it be Libyans who confront and decide such issues and bear the consequences, good and bad, of determining how to dispense justice to him. Political maturation for Libya’s citizens, as for those of any country, will not come from outsiders making judgments for them, but from them making their own decisions and living with the results.

Obviously, Libya is in no condition today to deal with Gadhafi and his cohorts. But if he and his key aides survive the current violence, they can be incarcerated and tried later, with international assistance to new Libyan authorities if appropriate. Immediate logistical difficulties do not justify shifting the moral and political responsibility of dealing with Gadhafi away from his countrymen to remote international bureaucrats.

Mr. Obama’s ready embrace of the International Criminal Court exemplifies his infatuation with handling threats to international peace and security as though they were simply local street crimes. It also reflects his overall approach to international affairs: a passive, legalistic America, deferring to international bodies, content to be one of 15 Security Council members rather than leading from the front.

This article originally appeared in the Wall Street Journal

Mr. Bolton served as U.S. ambassador to the United Nations from 2005 to 2006 and is the author of “Surrender Is Not an Option: Defending America at the United Nations and Abroad” (Simon & Schuster, 2007).

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