This is a rare article indeed since there is really not too much to like about Obama’s presidency thus far. Given the class warfare, the now-boring playing of the race card, the constant campaigning and not to mention his lack of leadership skills, Obama is a walking poster boy for failed socialist policies domestically and naivete at best in international relations. His biggest legacy will most likely be Obamacare which is really less a legacy and more of an albatross around the neck of America. It is nothing to be proud of. In fact, there is little in his first term to be proud of and it is doubtful there will be much in the second term. Perhaps his biggest foreign policy success- the death of bin Laden- was followed up by the debacle in Benghazi, Libya. His naivete in this area is displayed through his great apology tour shortly after being inaugurated in 2009 which only showed weakness. We should have known this was coming since his great powers of persuasion failed to win Chicago the Olympics. Some liberal papers are on his tail about the terrorists at Guantanamo in Cuba since he promised to close the base. They often refer to it as a “disgrace” or an “embarrassment” to the world which, if true, one has to wonder why “the world” will not accept any of these scum. Currently they are on a hunger strike which I think is good news for Obama. Should they waste away, they will save the taxpayers money and Obama future questions at a news conference.
But, having said all this, there is one area where, thus far, I think Obama and his administration should receive recognition and that involves the International Criminal Court (ICC). Formed in 1998 out of what is known as the Rome Statute, Bill Clinton signed the treaty with reservations that had to be resolved before implemented. If enacted, this court would be empowered to try war criminals and those who practiced genocide… the really bad guys out there. They were also tasked with prosecuting crimes of international aggression, although the definition was never really defined. Most ominous, at least to those in the Clinton administration, was that actions by this court could have serious implications on the execution of American foreign policy. Our recent intervention in Bosnia at the time, for example, could have been considered an act of aggression (since this was a NATO, not UN-sanctioned action) and our military leaders “prosecuted.” There are other scenarios that Clinton envisioned where American nationals could be singled out for prosecution before this Court for actions they took on behalf of and with the blessings of the US government. For these and other reasons, Clinton never submitted the treaty to the Senate for ratification.
Treaty ratification is one of those few items that requires a two-thirds majority vote for approval. This is reserved for the big, important things like over-riding a Presidential veto or even removing the President from office. The reason was simple: before a treaty became law, they wanted to make sure the “i’s” were dotted and the “T’s” crossed. They also had an aversion to becoming entangled in foreign wars and disputes. Clinton realized that (1) there were flaws with the treaty, and (2) he could never get it ratified in the Senate in the last two years of his administration without those flaws being corrected. There was also the constitutional question of whether the government could turn over an American national for prosecution to a foreign, international court. Additionally, the right to a trial by jury of one’s peers is enshrined not only in the Bill of Rights, but also in the text of the Constitution. An international panel of eight judges in the Hague is not a jury and it certainly contains no “peers.”
There is historical precedent for this line of thought. In the early 1800s, England sought to enlist the aid of the young United States in an international effort to end the slave trade. The US had ceased the importation of slaves in 1807. John Quincey Adams, a staunch abolitionist, held to constitutional principle and refused to go along with England in this international tribunal effort. In other words, although ending the slave trade was certainly a worthy goal (much like prosecuting genocide today), Constitutional principles had to prevail. Instead, the US and England made greater strides in ceasing the slave trade on a bilateral basis. Additionally, our Founders were all too aware of the travesty of international tribunals and handing over American citizens to be tried in foreign lands. Although taxation without representation is the reason taught in schools as the main reason for the Revolution, equally important was the practice of trying colonists in Admiralty Courts in England or Nova Scotia. While it is true that the US has since participated in and actually convened tribunals to try crimes against humanity, these were all in response to specific atrocities and they were certainly not open-ended, permanent ventures operating under vague guidelines were the tribunal itself was to fill in around those vagaries.
When Bush became President, his State Department became what some describe as openly hostile to the ICC. One of his administration members- Josh Bolton- notified the UN that the US had no intentions of honoring the treaty although he clearly left that option open for future consideration. Since the ICC’s signatories failed to address the concerns first expressed by Clinton, Bush went further and even cut off funding. Fearing that a foreign country would hand over an American to the ICC, he forged what were called Bilateral Immunity Agreements with about 100 countries. These BIA stated that the other country would not hand over an American to the ICC unless the US specifically agreed. To add teeth to the measure, if anyone violated the BIA, they could lose foreign aid or military assistance. In fact, the Bush administration made good on those threats. In his second term, he did soften his stance somewhat and waivers were granted as far as the sanctions went regarding the BIA and Bush did sanction, through their vote in the UN Security Council, an ICC action regarding atrocities in Rwanda.
Most of the Bush initiatives were not designed to undermine the ICC, but to PROTECT American citizens especially in light of the conduct of the war against terrorism. Of course, according to the Obama administration, there is no war on terrorism since they are “overseas contingency operations.” Bush’s policies were codified in the American Serviceman Protection Act (ASPA). Some of the provisions in the original act were “weakened” in the 2008 reauthorization of that bill, but they were designed to give the Executive branch greater leeway.
Along comes Obama who attempts to “reset” foreign relations by (1) the great apology tour, (2) cow-towing to Islam in his Cairo speech, (3) playing footsies with tyrants like Hugo Chavez and Vladimir Putin, (4) elevating the importance of international organizations like the UN which serve to criticize and chide the United States while taking our money, and (5) equating the objective exceptionalism of the United States using some culturally relativistic paradigm. That policy has led to a chilling of relations with long-time ally Israel, the establishment of an Islamic regime in Egypt, a void in Libya (and the death of an ambassador), Iranian and North Korean naked nuclear aspirations if not aggression, Russian incursions into Georgia, the Chinese basically laughing at us behind our backs, etc. In other words, there is much to dislike about Obama’s foreign policy which at times appears nothing short of ad hoc and reactionary instead of proactive. That is hope in action- let us hope nothing bad happens and all the bad people out there behave.
The Obama administration additionally has tried to re-engage the ICC under the leadership of Hillary Clinton at the State Department. The first inkling of this policy was the fact the Department sent a representative to Kampala, Uganda in 2010 for a conference on the ICC. One of the biggest problems left unresolved from Rome was the definition of “aggression.” Under some proposed definitions, although their authority would not be retroactive, American responses to international problems like Somali piracy, ethnic cleansing in Bosnia and Serbia, cyber attacks against Iranian nuclear facilities, or removing a tyrant like Saddam Hussein in Iraq, the Taliban in Afghanistan, or Assad in Syria could potentially be branded “aggression” under these formulations. In short, aggression would be in the eyes of the beholder and the “beholder” would be the ICC itself.
Despite US attendance at this conference, the United States under Obama is no closer to joining or funding the ICC than they were under Bush, or even Clinton. The only thing that has changed is that the rhetoric against the ICC has “softened” under Obama. From the more important practical standpoint, however, there is obvious evidence that the Obama administration is, like in other areas, following the Bush policy. For example, the ASPA which was reauthorized in 2008 under Bush remains in effect and there are no indications that anyone is actively seeking to repeal or weaken it. Most importantly, the original Bolton letter to Kofi Anan at the UN indicating American lack of recognition for the ICC left plenty of leeway for subsequent administrations to rescind its effect. However, despite the cozying up to the ICC rhetorically, that letter remains in effect today and it has not been disavowed. Many of the BIA negotiated during the Bush administration- there are about 100 of them- also remain in effect under Obama and, again, there are no inclinations to negate or renegotiate these agreements. Despite our attendance at the Kampala conference, we still do not “belong” to the ICC nor contribute to it. Our only relation to it is through referral of cases vis. our membership on the UN Security Council (but Bush used that tactic in the case of Rwanda). Furthermore, as Hillary Clinton accurately pointed out, our presence at the Kampala conference thwarted a broad definition of “aggression” which could have been “prosecuted” before the ICC that may have implicated American actions worldwide and seriously affected our foreign policy. Finally, the Obama administration has demonstrated absolutely no tendency to seek ratification of the Rome treaty in the Senate despite Democratic control of that body. In fact, they do not even list it as a priority among the treaties to be ratified.
Also, putting the ICC itself in perspective, it efficacy must be questioned. Since 2002, they have tried only two cases with one resulting in acquittal. They have also clearly avoided many cases that may have raised the ire of the United States (especially under Bush) in an effort to goad the US into membership. The fact remains that without the world’s only superpower as an active participant, the overall effect of the ICC is tarnished. Most of the original support for the ICC arose in developing countries of Asia and Africa but of the ten or so cases before the ICC, eight involve African countries. Hence, African support for the ICC has waned. And as has been seen in other areas, the ad hoc method of prosecuting war crimes and acts of genocide or “crimes against humanity” is clearly more efficient than a standing international tribunal.
Hopefully, the Obama administration will continue their current policy track regarding the ICC especially in light of some recent suggested cases for referral that actually came up in Kampala. One would single out American military personnel and commanders for actions in Afghanistan, including other NATO forces. Since the European Union was a great backer of the ICC in 1998 and since many member nations are also NATO members, one would like to see their acceptance now. Environmentalists have found their way to this venue seeking “prosecutions” for what they describe as “eco-terrorism,” or crimes against the environment. One could imagine the United States being “indicted” for carbon emissions. One of the weirdest suggested prosecutions was against the Pope for failing to act quickly against the sex abuse charges in the Catholic Church and the alleged cover up. Can one imagine the Pope being tried before the ICC, even in absentia?
Admittedly, much of the rhetoric of Obama’s foreign policy does not match the reality. A perfect recent example is “the line being crossed” regarding chemical weapon use in Syria. But, they abound elsewhere from actions taken against terrorist groups, use of the PATRIOT Act, and Guantonamo, Cuba. Campaign rhetoric and the “hold hands and sing a chorus of Kumbaya” vision of Obama’s foreign policy has clearly met the reality that there are many nefarious actors out there on the international stage who care less of Obama’s vision of himself as the Messiah. Most of this can be written off as his obvious naivete when it comes to foreign relations. That can be further be written off as what happens when we elect a President short on principle and a realistic vision and long on rhetoric, hope and change.