Why The “War Crimes” Charge Against Obama Will Go Nowhere

On Monday Britain’s Daily Telegraph reported that a Spanish lawyer named Daniel Fiol has petitioned the International Criminal Court (ICC) with a complaint against the U.S. president.

The reason? Fiol holds that Obama violated the Geneva Convention when he ordered the operation that killed Osama bin Laden.His filing argues that bin Laden should have been “pursued, arrested, tried and convicted” instead of being shot in Abbottabad, Pakistan on 2 May, 2011.

Of all the issues troubling President Obama right now, this may be the least of them.
There are several reasons for this. First, the U.S. is not a member of the International Criminal Court. Neither is Pakistan. The only way for “crimes” in either land to come under the scrutiny of the court is if the U.N. Security Council refers the case. Since the U.S. is a veto-holding member of that body, the chances are less than zero.

However, let’s say that either of the countries had signed treaties that put them among the court’s 114 member states. Even then, Obama wouldn’t need to lose any sleep.

The killing of Osama bin Laden does not rise to the standard the ICC sets in judging “crimes against humanity.” The statute that created the court states that these only count “when committed as part of a widespread or systematic attack directed against any civilian population.”

Obama would also appear fairly safe from the somewhat woollier potential charge of “war crimes.” That’s because the court can only really tackle these when they are “part of a large-scale commission of such crimes.” The court has thus far kept to this quite consistently. Following the Iraq war, the court’s prosecutor was bombarded with requests to investigate the role of Britain, which is of course a member of the court. However, he concluded there was no case that would meet the necessary criteria. Given that precedent, Obama has little to fear.

So, Fiol’s filing is a vanity lawsuit destined to go nowhere. Other than boosting his own profile, the main result will likely be to set back the cause of international law in the United States. Already the American blogosphere is up in arms. Few seem to recognize that it is a mischievous case with little legal merit. However, it will likely be stashed in the backs of people’s minds another apparent reason for America not to join the court.