War Crimes Investigation of Libya Hinged on Exemption for Americans

[ProPublica | By Marian Wang]
In an effort to hold Libya accountable for its violent crackdown on protesters, the U.S. and other members of the United Nations Security Council voted in favor of a resolution asking the International Criminal Court to investigate whether the Libyan government has committed crimes against humanity. The ICC announced today that an investigation was found to be warranted and would proceed.
As the Associated Press has noted, it’s the first time that the U.S. has voted in favor of the war crimes court but in keeping with its longtime fear of being prosecuted by the ICC, the U.S also included in the resolution a carve-out for itself. The AP reports that the provision was a "deal breaker" for the U.S.:

The United States insisted on including a provision in the resolution to protect Americans from investigation or prosecution by the International Criminal Court, known as the ICC. It requires that any citizen of a country that hasn't joined the ICC be investigated or prosecuted in his home country - not by the ICC - for any alleged actions stemming from operations in Libya authorized by the Security Council.

The U.S. is not a member of the ICC. Under the Clinton administration, the U.S. initially signed onto the treaty that established the ICC. But fear of being prosecuted by the court led the Bush administration to withdraw its membership from the court in 2002—a move that angered human rights groups at the time. Under the Obama administration, the U.S. has pledged to "end hostility toward the ICC and look for opportunities to encourage effective ICC action in ways that promote U.S. interests by bringing war criminals to justice.”
While human rights groups praised the latest move by the U.S. to support the ICC as a step forward, not everyone viewed it favorably.
Former U.S. ambassador to the United Nations John Bolton, in an opinion column in the Wall Street Journal, called the ICC “one of the world’s most illegitimate multilateral institutions.” Bolton led U.S. efforts in 2005 to defeat a resolution referring the Sudanese government to the ICC for investigation of its role in the Darfur genocide. The U.S. ultimately abstained in that vote, allowing the referral to go through.
Bolton said that a new Libyan government should hold Gadhafi to account—though as NPR has noted, it remains unclear what government will emerge if Gadhafi’s regime is toppled.


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