Free Markets, Free People

Drones, “war criminals” and the ICC

You probably recall the left’s call for the US to join the International Criminal Court. One of the primary reasons behind that call was a desire to see George Bush tried as a “war criminal” by much of the more extreme left. And that is one of the declared purposes of that court.

The Clinton Administration signed the Rome Statute in 2000 establishing the court but never submitted it for Senate ratification. Then Senator Barack Obama, when asked if the US should join the ICC, said “yes”, echoing the far left’s desire.

So I read this particular article with interest the other day, and wondered if their desire to join the court is still as strong now as it was then:

The pilots waging America’s undeclared drone war in Pakistan could be liable to criminal prosecution for “war crimes,” a prominent law professor told a Congressional panel Wednesday.

Harold Koh, the State Department’s top legal adviser, outlined the administration’s legal case for the robotic attacks last month. Now, some legal experts are taking turns to punch holes in Koh’s argument.

It’s part of an ongoing legal debate about the CIA and U.S. military’s lethal drone operations, which have escalated in recent months — and which have received some technological upgrades. Critics of the program, including the American Civil Liberties Union, have argued that the campaign amounts to a program of targeted killing that may violate the laws of war.

In a hearing Wednesday before the House Committee on Oversight and Government Reform’s national security and foreign affairs panel, several professors of national security law seemed open to that argument. But there are still plenty of caveats, and the risks to U.S. drone operators are at this point theoretical: Unless a judge in, say, Pakistan, wanted to issue a warrant, it doesn’t seem likely. But that’s just one of the possible legal hazards of robotic warfare.

Now note carefully what is being said. Not all drone pilots are considered to be violating the laws of war. For instance, an airforce officer flying a drone is a combatant and are normally found operating in a combat zone (Afghanistan) in support of combat operations.

However, it is argued, CIA operatives flying them in Pakistan and using lethal force for targeted killings in an undeclared war may be liable to charges of “war crimes”. It would, of course, require some legal entity in Pakistan to issue a warrant to take this argument from theoretical to real.

Now you may or may not agree with the legal arguments. But let’s stipulate, for the sake of argument, that they’re correct. Where does that lead us? Well, here:

Loyola Law School professor David Glazier, a former Navy surface warfare officer, said the pilots operating the drones from afar could — in theory — be hauled into court in the countries where the attacks occur. That’s because the CIA’s drone pilots aren’t combatants in a legal sense. “It is my opinion, as well as that of most other law-of-war scholars I know, that those who participate in hostilities without the combatant’s privilege do not violate the law of war by doing so, they simply gain no immunity from domestic laws,” he said.

“Under this view CIA drone pilots are liable to prosecution under the law of any jurisdiction where attacks occur for any injuries, deaths or property damage they cause,” Glazier continued. “But under the legal theories adopted by our government in prosecuting Guantánamo detainees, these CIA officers as well as any higher-level government officials who have authorized or directed their attacks are committing war crimes.”

There’s no question where the buck stops when talking about who has “authorized or directed” such attacks. It stops at the Oval Office.

So … about those cries for membership in the ICC and those shouts of “war criminal” by the left. Where in the world have they gone?


16 Responses to Drones, “war criminals” and the ICC

  • The extreme left is disappointed  with Obama who they consider too much a centrist, too willing to try to work with the GOP, and most importantly too quick to continue Bush’s policies in Iraq and Afghanistan.  I know a few who would gladly see Obama and Bush both accused of war crimes.  For all the rhetoric of Obama being an extremist or a socialist, those on the left who would fit those descriptions are angry with Obama and see him as basically not much different than Bush.

    • too willing to try to work with the GOP

      Wow! That would be a stretch.

      • In the minds of many on the left, Obama spent July to February trying to woo the GOP to side with him on health care.  They believe he could have gotten a Democratic plan passed in 2009 that was much more to their liking.  They do have a point — the GOP decided to make health care Obama’s “Waterloo” and looking at the 2010 elections their price for bipartisanship is an equal say (though votes in the House and Senate are not equal and usually would mean a more Democratic plan).

    • Obama is a socialist, first of all, and he is the only major political figure in the U.S. with extensive long-standing ties to a radical, extremist, and racialist institution.

      As far as you go, Scott, about the only thing you’re missing is the “Free Mumia” button.

      Are you saying, for instance, that you no longer support the ICC?

      That you did not in the past blame the U.S. for starting the Cold War?

      That you have not expressed your sympathy for the positions of the regimes in North Korea and Iran?

      That you did not relentlessly shill for Hezbollah during the last Israeli incursion into Lebanon to root them out?

      • No, Erb is probably right about this He didn’t say that Obama actually was a centrist, only that the whacked out left wing thinks so.  I am sure that there are those so far out on the fringe that they view him as a traitor to their cause.
        More problematic to me is the consideration that our country probably is violating international law, and much much worse, violating our own laws, by waging an undeclared war.  (Not only undeclared but no authorization was given by congress, and the details are kept secret).
        I would have thought that by now we would all realize that we always get in big trouble when we do this kind of thing.

        • The point you’re addressing in your first paragraph isn’t the one that I was addressing.

          And international law as adjudicated by whom?

          We’re in Afghanistan with NATO and with the permission of the Afghan government. It’s not clear what the arrangements with Pakistan are when we go after terror locations in their territory, but I haven’t seen anything forwarded by them to the UN on that matter.

          I wouldn’t be concerned beyond the concerns of war about the legality of our international status in fighting the Taliban if I thought that the regime in charge here was committed to U.S. sovereignty and U.S. national security. I don’t think it has a real interest in either.

          • well you might be right about that but I have questions, (1) are we authorized to attack targets in Pakistan ? (2) Is the war being escalated? (3) do we have a military alliance with Pakistan? (4) do we have complete agreement for our actions with their government?
            I do not know the answer to any of these questions and our so called fourth estate have done the usual crap job of giving us information.

          • I think you ask one question, to which the answer is that we’ve long had an arrangement with Pakistan, a very friendly one, though it is a torn state and not totally coherent internally, and that within the construct of that arrangement we have a limited arrangement to go after terror camps that are known to launch or control attacks into Afghanistan which we are trying to stabilize. I think that the complications of this are not amenable to full explication in that any single attempt to explain them probably fails. Part of the problem is that the Taliban are in many respects a creature of…the Pakistani intelligence services. So it’s a hall of mirrors inside that country, with some who I think are on both sides, depending on the week or the day. On whether the war is escalating or not, I think the answer is a soldi “No.” But there are incredible dangers associated with Pakistan because of the extremism, the internal incoherency, and of course the nuclear weapons.

            I’m far from knowing enough about Pakistan, but I have a natural distrust of the “experts” and try to keep an essential picture together that doesn’t invove knowing too much to see the forest for the trees. Again, hall of mirrors.

    • The extreme left is disappointed with Obama who they consider too much a centrist, too willing to try to work with the GOP. Because committed leftists believe that the GOP is the enemy of all that’s good and true, and they’re only fit for paying taxes and having their lives run by leftists until we manage to indoctrinate all their children away from such nonsense. Of course, I disagree. I think we should sit down with the GOP and talk things out, and hand them a bone every now and then, because that accomplishes the aims of the left with a lot less conflict. See how pragmatic and moderate I am?

      The extremists think Obama was also too quick to continue Bush’s policies in Iraq and Afghanistan. I know a few who would gladly see Obama and Bush both accused of war crimes. Again, I disagree. It’s quite clear to me that Bush deserves that for his unprovoked aggression against Iraq, which was the biggest foreign policy disaster in history, but Obama with his Christlike visage is just cleaning up the mess left by Bush and so is due for a lot of allowances. Again, you see, I take the middle road as a pragmatic wise moderate leftist.

      For all the rhetoric of Obama being an extremist or a socialist, those on the left who would fit those descriptions are angry with Obama and see him as basically not much different than Bush. And don’t start with how those people are basically Marxists who want to abolish private property and have the state run everything. I mean, it’s true and all, but that means they are the real extremists, and those like me who just want Obama to have the federal government dominate healthcare, energy, transportation, education, and finance, and raise taxes until the state controls more than half of all money in the country, are pragmatic moderates instead of socialists.

      Anyway, that’s my analysis {analysis, analysis, analysis}, which is completely different from opinion because I have advanced degrees. And I’m going to hang around for a few days and give you my analysis on just about anything that the ex-military baskets cases who run this place post about. Because I’m having fun. And shut up about how that shows I’m mentally disturbed because I take pleasure in irritating others! I don’t! And I didn’t either pull the wings off flies when I was a kid! Except that one time!

      No, I’m certainly not mentally disturbed and I don’t come here from a narcissitic need for attention. Nope. I come here to study you all. You’re like a primitive tribe that believes in preposterous things and I’m like an anthropologist studying your weird beliefs. It’s research for my new book “Dense Righties: Are They Even the Same Species as Wise Leftists?” It’s legitimate research. It is! Stop laughing! And if you disagree, you doth protest too much! Stop laughing, I said!

  • I did notice when “60 Minutes” had a piece on drone pilots back a year or so ago, that the showed them in uniform.  It would appear that in order to “appear” to be within the Geneva Conventions, it is necessary to have them in uniform for CBS’ cameras.

    • Does make you wonder if someday when there are autonomous flying vehicles, if the programmers will be required to wear uniforms while working on the software.

      • how long before China starts supplying terrorists with drones?

        • It won’t be China – it’ll be Iran.

          • On the other hand, whenever you look at trouble in the world now, you should always know where the Chinese are. They are growing more powerful and they could be way ahead of the curve in terms of understanding that open belligerence is bad for business, but that causing serious trouble for rivals, including asymmetrical warfare serious trouble, through the deep backchannels, give them advantages they cannot get any other way.


            The most serious questions — most serious because the answers are so incredibly difficult to discern — I have about our domestic politics are what sort of role are the Chinese playing in them and what sort of role are the Saudis et al. playing. I hear an awful lot of things and see an awful lot of attitudes in our politicians that boil down to interests not our own. And I also see entanglements and confusions of interests that suggest some people in powerful people regard American interests and American sovereignty as an impediment to their interests and their own personal prosperity.

  • So… Americans can be considered unlawful combatants while fighting an undeclared war against other unlawful combatants???

    McQThere’s no question where the buck stops when talking about who has “authorized or directed” such attacks. It stops at the Oval Office.

    “I inherited this program…”

    And maybe he can try Slick Willie’s trick of claiming to be immune under the Soldiers and Sailors Relief Act because, as CinC (heaven help us), he’s a member of the US armed forces.