- The Washington Times - Wednesday, December 2, 2009

Imagine if President Obama went to Oslo next week to receive his Nobel Peace Prize and was arrested for purported war crimes committed by U.S. forces in Afghanistan. This bit of historical irony would be possible under an argument being made by Luis Moreno-Ocampo, chief prosecutor for the International Criminal Court in The Hague. Mr. Ocampo claims jurisdiction over actions of U.S. troops in Afghanistan because Kabul in 2003 acceded to the Rome Statute, which established the court. He said a preliminary examination already is under way regarding possible American culpability in crimes against humanity.

There are 110 ratified parties to the agreement, but of them, only Afghanistan has a major U.S. combat-force presence, and the United States does not recognize the treaty. President Clinton signed the Rome Statute in December 2000, but the Senate did not ratify the treaty, and Mr. Clinton’s signature was nullified by President George W. Bush in May 2002. The Bush administration was concerned that the ICC would become a permanent arena for endless harassment of American military personnel and civilian leaders on trumped-up war-crimes charges. But under Mr. Ocampo’s logic, the court’s jurisdiction would be determined by the nation in which foreign forces or personnel are stationed regardless of whether the forces’ home country recognized the treaty. The United States would have to face the music.

As early as September, Mr. Ocampo was investigating allegations of “massive attacks, collateral damage exceeding what is considered proper, and torture” conducted by coalition forces. Those who believe that Mr. Ocampo only has a case against the previous administration should think again.

Several events have taken place under Mr. Obama’s watch that could bring charges for war crimes. On May 4, American bombers killed as many as 147 Afghan civilians, 93 of them children, in an air strike in western Afghanistan that locals call the Farah Massacre. On Sept. 4, up to 90 civilians were killed by two 500-pound bombs dropped by a U.S. F-15 fighter on fuel trucks in Kunduz province that had been hijacked by the Taliban but were stuck in the mud. About 500 civilians had gathered to help themselves to the fuel when the air strike hit. Even the widespread use of unmanned drone aircraft to conduct strikes on terror targets is considered illegal activity in some quarters - and that is a program the Obama administration has openly endorsed and expanded.

The United States is well-equipped to defend itself against predatory moves by The Hague. In August 2002, Congress passed the American Service-Members’ Protection Act to “protect United States military personnel and other elected and appointed officials of the United States government against criminal prosecution by an international criminal court to which the United States is not party.” The act authorized the president to use “all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of or at the request of the International Criminal Court.” Presumably, this act authorizes the use of force should the ICC seek to force Americans to trial.

The Obama administration has thus far been largely sympathetic to the global court and its mission. It endorsed Mr. Ocampo’s move to indict Sudanese President Omar Hassan al-Bashir on genocide charges, and in August, Secretary of State Hillary Rodham Clinton said it is “a great regret, but it is a fact that we are not yet a signatory. But we have supported the court and continue to do so.” We wonder if the United States would continue to support the court with the president in handcuffs.