Obama to commit to the ICC?

For the past six years, George Bush kept the International Criminal Court at arm’s length, refusing to join it but encouraging its work bringing malefactors to justice.  With the US acting as the world’s policeman, Bush explained, he could not afford to allow the ICC to take jurisdiction over our military personnel and give our enemies a political lever for interference.  Gerald Warner at the Telegraph warns that Barack Obama will reverse that decision — and that could open the door for a string of indictments relating to Iraq and Afghanistan:

But the people who should be feeling really nervous about this development are the citizens of the United States and more especially their armed forces. The signs are that the grandstanding Barack Obama is preparing to subject the United States to the jurisdiction of the ICC. In May, 2002 President Bush withdrew the United States from the Rome Statute which established the ICC. With America heading into global conflict, he had no wish to see US troops arraigned for alleged war crimes before a kangaroo court.

That was a wise decision and probably required in terms of the US Constitution. Already, however, the Obama administration is sending out very different messages. …

Last month US Ambassador Susan Rice, in a closed meeting of the Security Council, supported the ICC, saying it “looks to become an important and credible instrument for trying to hold accountable the senior leadership responsible for atrocities committed in the Congo, Uganda and Darfur”. A week later Ben Chang, spokesman for National Security Advisor General James Jones, took a similar line, telling the Washington Times: “We support the ICC in its pursuit of those who’ve perpetrated war crimes.”

From a purely cynical, Machiavellian point of view, joining the ICC would allow Obama to outsource what Patrick Leahy has demanded in the Senate — some sort of “truth commission” to pillory the Bush administration and raise their own stature.  It would take the matter out of their hands, allowing them some political cover domestically while building credibility with their internationalist friends at home and abroad.  It would certainly fit within their rhetoric over the last few months about “soft power”.

However, Warner doesn’t provide a lot of support for his argument.  The Bush administration didn’t oppose the ICC outright, only any jurisdiction over American actions.  The expressions of support from Rice and Chang don’t lend themselves to an interpretation that the Obama administration plans on surrendering American sovereignty to the ICC, either sooner or later.

Of course, it doesn’t mean he won’t, either.  Obama would face two hurdles if he attempted it: the US Constitution and the political firestorm it would provoke, especially in the military.  The Constitution gives no provision for any foreign court or potentate to have jurisdiction over American military personnel or national leaders for their actions in service to their country.  The courts would likely laugh any suggestion that they should approve the extradition of soldiers or former administration figures to a foreign court, no matter what Obama signs.  The Senate would likely take a dim view of it once their military constituents started phoning Capitol Hill offices to discuss the risk this would place on them and their families.

The odds of this happening seem low.  With a financial crisis taking most of the attention, I doubt the ICC will get much more than lip service for the next four years.

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