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?