The Landing Zone | 4.16.10
By Alan W. Dowd

The International Criminal Court (ICC) is one of those well-meaning but unrealistic organizations created by well-meaning but unrealistic people. As evidence, recall that one of the ICC’s founding fathers declared in 2000 that the court “is needed to achieve justice for all…end impunity…end conflicts…[and] deter future war criminals.” Ten years later, mankind is no closer to realizing any of those noble goals, yet it seems the United States is edging closer to the ICC. Given the ICC’s record and plans, one wonders why.

Among those currently under indictment and/or investigation by the ICC are warlords in Uganda, genocidal generals in Sudan, and, apparently, U.S. troops trying to rebuild Afghanistan. According to a Wall Street Journal report, ICC prosecutor Luis Ocampo is conducting a “preliminary examination into whether NATO troops, including American soldiers, fighting the Taliban may have to be put in the dock.”

“We are investigating whoever commits war crimes,” Ocampo told the Journal. “I prosecute whoever is in my jurisdiction.”

When the ICC was born, its U.S. critics voiced concerns about the court doing this very thing and urged the Clinton administration not to sign on. Non-signatories, it was thought, would be safe from the ICC’s reach. Apparently not.

Even though the U.S. has not ratified the treaty that spawned the ICC, Ocampo believes he has the authority to investigate anything and anyone in Afghanistan because Afghanistan ratified the treaty.

This helps explain why President Bill Clinton tried to include special safeguards in the ICC treaty, why President George W. Bush expunged America’s name from the treaty and why a bipartisan majority in Congress passed the American Service-Members’ Protection Act, which authorizes the president to use “all means necessary and appropriate” to free U.S. personnel from ICC arrest.

Revisionist media accounts notwithstanding, President Bush wasn’t alone in his opposition to the ICC. Concerned about American troops being falsely accused, President Clinton ordered representatives to the treaty-writing conference to vote against the final document. The Clinton administration also worried that the ICC could be flooded with spurious claims that would “embroil the court in controversy, political decision-making and confusion.”

To remedy both concerns, Washington proposed that permanent members of the UN Security Council be granted the power to veto ICC prosecutions. However, that commonsense compromise was rejected. Never mind that the United States has earned special safeguards because its troops play a special role around the world as first responders and defenders of last resort.

Although President Clinton ultimately signed the treaty, he pointedly declared, “I will not and do not recommend that my successor submit the treaty to the Senate for advice and consent until our fundamental concerns are satisfied.”

Those concerns were still unaddressed when the treaty came into force in mid-2002, which is why President Bush disavowed the treaty. A State Department official noted that “there is a real possibility that someone will use the ICC for political purposes [and] exploit the process.”

Within a year, Washington’s worries came to pass: A handful of Iraqis tried to take Gen. Tommy Franks to the ICC for war crimes. Greek lawyers filed suit in the ICC against Tony Blair over the Iraq war. All told, there were some 500 complaints brought before the ICC in its first year, forty of which accused the U.S.-led coalition of “aggression” against Iraq. (One wonders where the outrage was when a bona fide war criminal ruled Iraq.)

And now we have the case of Afghanistan. Given Ocampo’s expansive view of his own mandate and the ICC’s subjective definitions of war crimes, Americans should brace for the worst.

According to the treaty that created the Court, war crimes include “extensive destruction and appropriation of property,” depriving “a prisoner of war…of the rights of fair and regular trial,” launching an attack “in the knowledge that such attack will cause…injury to civilians,” and employing weapons intended to cause “unnecessary suffering.”

How difficult would it be for a motivated prosecutor to convince a panel awash in moral relativism and anti-Americanism that U.S. troops caused “extensive destruction” of Afghan property, or launched raids knowing that civilians would be injured, or dropped munitions that caused “unnecessary suffering,” or deprived detainees of their rights?

The answer is not difficult at all, especially at The Hague. Yet the Obama administration seems to be warming up to the ICC.

“That we are not a signatory,” Secretary of State Hillary Clinton said of the ICC, “is a great regret.” UN Ambassador Susan Rice has called the ICC “an important and credible instrument.”

With U.S. forces engaged around the world, this is no time to cozy up to the ICC and thus make it easier for ICC prosecutors to hamstring U.S. troops and military commanders with worries of international indictments and show trials.

The Landing Zone is Dowd’s monthly column on national defense and international security featured on the American Legion's website.