There’s an old joke:
Q: What do you call a thousand lawyers at the bottom of the
ocean?
A: A good start.
Of course, antipathy towards lawyers in the United States,
whether tongue-in-cheek or genuine, is nothing new. But that
antipathy is likely to grow amongst American soldiers and
policymakers, as the pool of lawyers with which they must contend
may soon receive a substantial addition in the form of the
International Criminal Court, perhaps with the blessing of the
United States government.
The ICC was formally established in 2002 by a treaty known as the
Rome
Statute, and claims authority to investigate and
prosecute individuals accused of war crimes, genocide, and crimes
against humanity, as well as the yet-to-be-defined crime of
“aggression.” Incredibly, the ICC is empowered to prosecute
nationals of countries not party to the Rome Statute, on
the basis that the country in which the alleged crimes occurred
is a party.
This is the basis of the ICC’s latest
action against NATO forces, including those of the
United States, a non-party to the Rome Statute. The ICC chief
prosecutor, Luis Moreno-Ocampo, has begun exploring accusations
that NATO forces have committed war crimes in Afghanistan, which
became a party to the ICC in 2003. This development comes in
response to a series of allegations that U.S. airstrikes carried
out as part of NATO operations against the Taliban have led to a
high number of civilian casualties.
The Court has also injected itself into Israel’s self-defense
against Palestinian terrorism. Much criticism has rightfully been
directed at the so-called “Goldstone report,” named after Judge
Richard Goldstone, who chaired the U.N. Human Rights Council
commission tasked with investigating alleged war crimes committed
by Israel and the Palestinians in Gaza during January’s Operation
Cast Lead. The report asserts that Israel (also a
non-party to the Rome Statute) committed war crimes in Gaza when
acting to prevent rocket fire into Southern Israel, and
recommends that the matter be referred to the U.N. Security
Council, and from there to the ICC, if Israel does not
investigate these allegations itself.
It must be noted, however, that even before the Goldstone report
came out, the ICC was already
seriously considering requests to investigate
Israel over alleged war crimes in Gaza (even though the
Palestinian Authority is itself also not a party to the Rome
Statute).
Taken together, the ICC’s actions against the United States and
Israel thus far demonstrate that the Court can be counted on to
be an instrument of, or even an active participant in, punishing
Western democracies defending themselves against terrorists who
deliberately seek civilian casualties on both sides — even if
the democracies in question never agreed to submit themselves to
the treaty in the first place. Armed with a track record of going
after such countries, and licensed to pursue investigations and
legal action with total disregard for national sovereignty, the
ICC is likely to undertake similar initiatives in the future.
That is why the United States must act decisively to repudiate
the ICC, rather than join it. But the signs in this regard are
not all that encouraging.
The Obama administration has so far reserved comment on the
Goldstone report’s actual findings, instead commenting that the
premise for the report is flawed. Although U.N. Ambassador Susan
Rice has stated that any further review should be conducted by
the U.N. Human Rights Council (a remarkable statement,
considering the Council’s membership includes Iran, Libya, and
China) and not the Security Council through which Israel could be
referred to the ICC, the administration has also notably
refrained from giving an explicit statement on whether Israel
should actually be referred to the Court. In fact, the White
House has already had to
walk back a recent statement from one of its own
officials indicating that the United States would exercise its
Security Council veto to prevent the report from going to the
ICC, saying instead that the official “misspoke.” Since then,
U.S. officials have
indicated that the U.S. would not allow the
Goldstone report to reach the Security Council from the Human
Rights Council — perhaps they will have to walk that one back as
well. In any event, this hand-wringing falls well short of what
should be a clear policy statement that the United States will
veto any Security Council referral of Israel to the Court.
Clarity is also lacking so far with respect to the ICC
investigation of NATO. The Department of Defense has yet to make
any official statements regarding the matter, even as the
President contemplates sending more troops to Afghanistan — or,
as some might reasonably view it, more potential defendants to
the Court.
Clearly, the administration should refrain from seeking Senate
ratification of the Rome Statute. The United States cannot serve
its interests by binding itself to a Court built on flawed,
activist architecture with a demonstrated capacity for being
driven by the political agendas of other nations. While President
Obama may be tempted to justify ICC membership with the notion
that the United States must have a “seat at the table” in order
to reform the Court from within, the very act of becoming a party
will undermine America’s ability to reject future ICC
investigations as “illegitimate.”
President Obama needs to think through the implications of
signing us up for the ICC. If he does not, we’re going to need a
much bigger ocean.
