From a Bloomberg editorial:
Announcing the arrest, Serb officials said Mladic will soon be extradited to the International Criminal Tribunal for the former Yugoslavia in The Hague. The United Nations has referred the case of Libyan dictator Muammar Qaddafi to the International Criminal Court, also in The Hague, on charges of killing civilians.
The U.S. supported the criminal referral on Qaddafi. The potential downside of this action is that by threatening to make Qaddafi an international outlaw — prosecutors in The Hague have yet to indict him — Washington has likely rendered a diplomatic solution to the war in Libya impossible.
Why would Qaddafi give up power and seek exile abroad if he thinks he would be sent to the International Criminal Court? This conundrum has left diplomats in the absurd situation of scouring Africa for a country that might take the Libyan leader but not send him to The Hague.
In the case of the conflict in the former Yugoslavia, Mladic and other Bosnian Serb strongmen were similarly referred to the International War Crimes Tribunal while the conflict was still going on. Arguably, that gave them additional cause to keep fighting rather than negotiate. In the end, peace was achieved only because the NATO allies used sufficient force to induce Belgrade to accept peace terms.
From Mother Jones last December:
In its first months in office, the Obama administration sought to protect Bush administration officials facing criminal investigation overseas for their involvement in establishing policies the that governed interrogations of detained terrorist suspects. A “confidential” April 17, 2009, cable sent from the US embassy in Madrid to the State Department—one of the 251,287 cables obtained by WikiLeaks—details how the Obama administration, working with Republicans, leaned on Spain to derail this potential prosecution.
The previous month, a Spanish human rights group called the Association for the Dignity of Spanish Prisoners had requested that Spain’s National Court indict six former Bush officials for, as the cable describes it, “creating a legal framework that allegedly permitted torture.” The six were former Attorney General Alberto Gonzales; David Addington, former chief of staff and legal adviser to Vice President Dick Cheney; William Haynes, the Pentagon’s former general counsel; Douglas Feith, former undersecretary of defense for policy; Jay Bybee, former head of the Justice Department’s Office of Legal Counsel; and John Yoo, a former official in the Office of Legal Counsel. The human rights group contended that Spain had a duty to open an investigation under the nation’s “universal jurisdiction” law, which permits its legal system to prosecute overseas human rights crimes involving Spanish citizens and residents. Five Guantanamo detainees, the group maintained, fit that criteria.
While the Bloomberg editorial raises some good points, it amazes me (but doesn’t surprise me) the editors totally ignore US war crimes, both creating the legal framework for a US torture regime AND torturing. And our torture was both direct and indirect: we waterboarded people while we shipped others to states who practice torture. And the next President helping our torturers escape justice. None of that makes it into this editorial, naturally. And while Obama, as President, is constitutionally required to pursue the perogatives of the Executive branch, forcing Congress and the Supreme Court to balance his power, you’d think torture was a rather bright line.
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