John Bolton, a possible 2012 presidential candidate and a neoconservative who hates being called one, never has had a good word to say about international law. So it is no surprise that he has written an Op-Ed for The Wall Street Journal decrying the Obama administration's "embrace" of the International Criminal Court. In fact, the administration has not yet embraced the ICC - the U.S. is still not a member - but it has become less hostile to the court than was the Bush administration, in which Bolton played a prominent and reprehensible role. What Obama has done, and quite rightly so, is to look favorably upon the U.N. Security Council's decision to refer Muammar al-Gaddafi to the ICC for prosecution. Bolton writes:
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?...
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.
Ah yes, the cold steel argument. That's the one he and his fellow neoco ... er ... compatriots at the Project for a New American Century put forth for dealing with Iraq, and the rest of the Middle East, lying about weapons of mass destruction to give the United States a fabricated justification for invading, which it did without U.N. sanction. But that didn't bother Bolton because he despises not only the United Nations as it exists but the whole idea of any international organization that isn't fully controlled by the United States and whose rules the United States is not bound by.
Bolton's appalling résumé is filled with examples of the kind of arguments he is making in this matter. From nuclear proliferation to chemical weapons, he's done what he can to gut international action. And now he claims that the ICC, less than a decade old, is weak and ineffective without noting his own role and that of his boss, the previous inhabitant of the Oval Office, in doing everything possible to ensure that the court would be weak, including keeping the U.S. out of it altogether. Subsequent to Bolton's departure from the Bush administration, the U.S. did say the ICC was right to prosecute officials in Sudan for war crimes in Darfur. But an American citizen - say a Secretary of Defense or Vice President - accused of such a crime is exempt from ICC jurisdiction as a result of bilateral agreements with more than 100 nations,
It's the foreign-policy version of IOKIYAR.
In his Journal piece, Bolton makes a very big deal of how it should be up to Libya to try Gaddafi if he lives through the revolt against him. Most of his crimes, after all, were committed against Libyans. That is most certainly true. The dictator's rap sheet, is, as the cop shows say, as long as your arm. After civil institutions wrecked by four decades of dictatorship are built anew, and a system of the rule of law implemented in the place of the arbitrary system now in place, watching the trial of Gaddafi for torture, grand larceny and murder on his home turf would be something every Libyan could take joy in.
But such a trial need not be held instead of proceedings against Gaddafi at the ICC. It could be in addition to, in a similar way to how both state and federal charges can be brought against a defendant. Prosecuting Gaddafi would give the ICC the opportunity to learn from its past mistakes and start to become an effective tool of international justice. That's far better than the victors' justice we saw, for instance, at the end of World War II.
Bolton, obviously, doesn't like that idea. Says he, "The plain if deeply unpleasant fact is that history's hard men are not deterrable by the flimsy threat of eventual prosecution."
That, indeed, may be true. The hard men of Bolton's acquaintance such as Dick Cheney and Donald Rumsfeld may not have been deterrable in their actions. But then we won't know if the next such crew in 10 or 20 years would have been deterred from whatever terrible future actions they take if these two and some others had been prosecuted and forced to write their memoirs from prison cells.
And that is what Bolton and others of his ilk really have against the ICC. They fear not only that prosecution that is avoided at home might go international in some future case, but also that it might actually have a deterrent effect. And that would, in their view, hamstring the kind of behavior they believe is America's sovereign right to engage in.
The ICC, Bolton declares, is "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."
We can't know the answer to that until we give it the opportunity to try. The Obama administration appears ready to do that. It's the right move.