Special Report

Ambulance Chasing — From Kabul to Gaza

U.S. troops serving in Afghanistan may soon have to find themselves top international lawyers.

By 10.8.09

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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.

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About the Author

Ben Lerner is Vice President for Government Relations at the Center for Security Policy in Washington, D.C.