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?
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The International Criminal Court (ICC) has no real power of enforcement. It is one of those bodies that the “one world” crowd managed to get formed and funded in hope of creating the penultimate judicial body that can adjudicate criminal complaints against political and military leaders anywhere in the world. It depends on voluntary compliance with its indictments and voluntary submission to its rule. As you might imagine, that’s not as forthcoming as its planners thought it might be – especially among the nations most in need of straightening up. Such as Sudan:
blockquote>Thousands of people protested in Khartoum on Friday after preachers condemned an International Criminal Court arrest warrant for Sudan’s president on charges of war crimes in Darfur.
It was the third day of demonstrations after the Hague-based court announced it was indicting President Omar Hassan al-Bashir on seven counts of war crimes and crimes against humanity, including murder, rape and torture.
While everyone agrees that what is happening in Darfur is a crime against humanity, it is a crime that the world has allowed to continue for almost 20 years. So one has to wonder, other than a bit of moral preening by the ICC, what utility issuing an arrest warrant for the head of state of Sudan might have. Will it actually facilitate his arrest and end the problem in Darfur? Will it improve the conditions and security for those in danger in Darfur? After all, if it is the conditions and the plight of those in Darfur that the ICC is using as the basis of its criminal complaint, wouldn’t you hope that such a move would improve that situation rather than worsen it?
As it turns out, it does “none of the above”. The issuance of the arrest warrant by the ICC has instead caused all the aid agencies working to save the refugees to be thrown out of the region on suspicion they’re passing evidence of crimes on to the ICC.
Of the 76 NGOs in Darfur with which the U.N. is working, the 13 that have been expelled account for half the aid that is distributed in the region, said Elisabeth Byrs, spokeswoman for the U.N. Office for the Coordination of Humanitarian Affairs.
Their departure would leave 1.1 million people without food, 1.5 million without medical care and more than one million without drinking water, she told the briefing.
“It will be very, very challenging for both the remaining humanitarian organizations and for the government of Sudan to fill this gap,” she said.
Of course the argument might be “we should confront evil where ever we find it” and I don’t disagree. But issuing a toothless arrest warrant that only agitates the person named to the point that over a million people are placed in peril doesn’t exactly live up to the word “confront” in my book. It is a moral “feel good” activity which may spur an immoral reaction beyond anyone’s control. And that seems to be the case here.
It is one thing to issue the sort of warrant the ICC has issued and then take the action necessary to serve and enforce it. But in the absence of that, what is the utility of issuing such a warrant without such an enforcement mechanism, especially given the range of possible negative reactions and outcomes? Whatever happens now to those million people at risk in Darfur, as a result of the ejection of the aid agencies so key to their survival, rests squarely in the lap of the ICC. I’m not arguing that al-Bashir isn’t a murdering criminal or that the world shouldn’t do what is necessary to stop his crimes against the people in Darfur. But what shouldn’t be done is hand him a reason to further endanger those people by issuing unenforceable warrants that make the rest of the world feel morally superior but actually worsens the threat against those who can’t defend themselves.