Washington, D.C., May 19, 2010
In December 1999, the chief prosecutor of a UN war crimes tribunal revealed she was sifting evidence that NATO’s pilots and commanders—many of them American—may have broken international law by bombing Serbia. The claim was a shocker. Amid sharp US criticism, the prosecutor backed down.
That, however, was before the International Criminal Court came into force in mid-2002. Such legal ideas are no longer so rare or easily dismissed. Indeed, military and political leaders could soon face a dramatically denser tangle of legal dangers.
In June, ICC member states meeting in Kampala, Uganda, will decide whether to add a “crime of aggression” to offenses it will investigate. Member nations would be obliged to arrest officials accused of the crime for trial in The Hague. It could happen to US leaders and service members, despite the fact Washington has refused to join the court.
The UN-sponsored Rome Statute of 1998 authorized creation of an independent and permanent court to end impunity for perpetrators of genocide, crimes against humanity, war crimes, and the vague crime of “aggression.” Signatories could not explain the latter term, though, and left it undefined and unprosecutable.
Now, members are weighing a draft definition. It holds that a crime of aggression occurs when someone directs use of force in a way that is a “manifest violation” of the UN charter. The charter prohibits nondefensive use of force and provides for Security Council authorization.
US officials say that, by the ICC’s draft definition, NATO leaders probably would have been judged criminal for the 1999 war to stave off Serbian attacks in Kosovo. The Iraq War, which also lacked Security Council approval, would be unlawful, too.
Worse, there exists no impartial body to decide which side is an aggressor. Precisely who initiates and directs a war is murky, so literally hundreds of officials would potentially be subject to indictment, arrest, and prosecution, say legal experts. It is a standing invitation to abuse. In fact, concern about politicized prosecution is why the US, China, Russia, India, and Israel for years have refused to join the ICC. Refusal, however, wouldn’t matter to this court. Military action by nonmembers could still be characterized as “aggression,” if it happened on the soil of one of the ICC’s 111 member states.
Airpower has long provoked sharp debate about legalities. Some argue bombing is inherently inhumane and uncivilized because many victims are civilians. This allegation has cropped up in every war and will again.
The Clinton Administration helped negotiate the Rome Statute but couldn’t persuade others to address US military concerns about politicized prosecutions. Though President Clinton signed the Rome Statute, he slammed its “significant flaws” and never sought Senate ratification, which was implausible in the extreme.
President George W. Bush took a more hostile stance. His Administration objected to a lack of external checks on the powers of the court and dilution of Security Council authority. Bush not only suspended Clinton’s signature but also negotiated agreements with some 100 countries to prevent surrender of US personnel to the ICC. This worked, and little changed until recently.
President Obama took office ready to re-engage to some extent with the ICC. Secretary of State Hillary Clinton last summer declared, “This is a great regret that we are not a signatory.” The Administration began participating as observer and pledged to assist some of its investigations.
However, even ICC-friendly Obama officials have argued against the aggression prosecutions. They recognize that the US is unique in the world for its peacekeeping and humanitarian operations, having forces deployed in scores of nations.
The developing US position seems to be that the court should obtain a Security Council finding of aggression before acting.
Whatever the outcome of the aggression issue, US problems with the court are sure to continue.
Last September, ICC chief prosecutor Luis Moreno-Ocampo reported he was collecting information about possible war crimes committed by NATO forces in Afghanistan. Drawing scrutiny, he said, were “massive attacks, collateral damage exceeding what is considered proper.”
He has said that inadvertent killing of civilians in a military strike could in some cases be deemed a war crime.Moreno-Ocampo specifically mentioned unmanned aerial vehicle strikes against terrorist leaders in Afghanistan and Pakistan.
Such actions have begun to affect Western military norms. The Wall Street Journal, in a Nov. 26 critique, has Moreno-Ocampo recounting a conversation with a NATO legal advisor; the advisor said troops are trained to realize they could be arrested and brought to the ICC on war crimes charges with the help of evidence provided by NATO itself. This is hardly a recipe for trust and confidence.
Maj. Gen. Charles J. Dunlap Jr., a former USAF deputy judge advocate general, has warned about “lawfare,” defined as “the use of law as a weapon of war” by foes who exploit “real, perceived, or even orchestrated incidents of law of war violations” to undermine superior military power.
Obama has pledged to consult closely with military leaders about the court. It is hard to believe the White House will get positive feedback without major changes in ICC governance. Without military support, there is virtually no chance that the required 67 Senators will vote to ratify the Rome Statute.
At bottom, the major question is not whether international law will be observed, but who will stand in judgment of US troops and leaders.
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