- The Washington Times - Tuesday, October 16, 2001

President William Jefferson Clinton's signature covenanting the United States to an International Criminal Court (ICC) hangs like a Sword of Damocles over our civilian and military personnel warring against global terrorism in Afghanistan and elsewhere.

President George Bush should revoke the folly of his predecessor. He should urge Congress to prohibit as domestic law any cooperation with the ICC to prosecute a United States citizen. That is the least we owe to our brave men and women risking that last full measure of devotion on behalf of our cherished democracy and liberties born in the age of enlightenment.

A few examples should concentrate the mind wonderfully. The so-called 1998 "Rome Statute" governs the ICC after ratification by 60 nations. It defines as a war crime subject to ICC jurisdiction any attack by our soldiers with knowledge that inescapable collateral deaths or injuries "to civilians or damage to civilian objects or widespread, long-term damage to the natural environment would be clearly excessive in relation to the concrete and direct overall military advantage anticipated."

On Oct. 13, a Navy jet mistakenly dropped a 2,000-pound bomb into a residential neighborhood of Kabul. Four civilians were killed and eight were injured. Earlier last week, the Pentagon conceded that an errant cruise missile strayed from its Kabul radio tower target and may have killed four United Nations civilians tasked to clear mines. According to reports of less reliability, scores if not hundreds of civilians were killed last Wednesday in a bombing of a village near the eastern city of Jalalabad.

Civilian war casualties are no novelty. Ever since war morphed from isolated battles ala Achilles and Hector into national clashes, civilian carnage has been intrinsic. During our 1999 Kosovo air campaign, the Chinese Embassy in Belgrade was inadvertently bombed and civilians were killed. The Central Intelligence Agency had identified the wrong building for destruction. In February 1991, our Air Force bombed a shelter in Baghdad in the midst of the Persian Gulf war. The CIA believed it was occupied by the Iraqi intelligence service, not by of the hundreds of civilians who became unintended war casualties.

During World War II, our firebombing of Tokyo and atomic bombings of Hiroshima and Nagasaki killed countless civilians. Ditto for our destruction of Dresden. Churchill advised Allied pilots to make the rubble dance. Our enemies, furthermore, have routinely placed civilians in harm's way in hopes of protecting their soldiers and military machinery from attack.

Under the Rome Statute, however, unintended civilian deaths or damage is made criminal if international jurists find an incommensurate expectation of "concrete and direct" overall military advantage. But that latter criminal concept is as manipulable as a puppet.

Despite more than 5,000 years of incessant warfare among mankind, calculating or speculating over military advantage from a particular attack remains vastly more soothsaying than science. That is partially because morale is pivotal, as Napoleon understood.

Winning war largely consists in convincing the enemy that he has lost. And who can say with any conviction that a specific attack like the bombing of Jalalabad might have broken or fractured the back of the enemy and thus justified inevitable civilian casualties? Certainly not international judges unschooled in the history and art of warfare.

Moreover, no war can be fought without targeting errors that yield no military advantage. And our ability to defeat the enemy would be thwarted if a civilian presence among enemy troops and armament factories would make an attack a war crime.

In sum, the Rome Statute exposes our military and civilian leaders to war crimes prosecutions for time-honored war tactics and strategy inherent to pursuing victory. It also employs a foggy criminal standard-weighing civilian or environmental damage against military gain-readily susceptible to intrigue by international judges swayed by Realpolitik, not law.

The Rome Statute brims with additional sinister defects. It applies to the United States whether or not the Senate ratifies the covenant. Its criminal prohibitions reach the president, members of Congress and all executive branch civilians, such as the secretaries of defense and state and the director of central intelligence. Presiding judges may override the president's refusal to disclose national security information allegedly pertinent to an ICC prosecution. And the method of choosing the Rome Statute's 18 judges sporting nine-year terms inspires more fright than confidence. They would be elected by a two-thirds vote among ratifying nations, which are likely to ape the absurdity of the recent eviction of the United States from membership on the United Nations Human Rights Commission.

Isn't it unthinkable that nations we list as sponsors of terrorism or egregious violators of human rights, such as Iraq, Iran, Cuba, Libya, and Syria, would cast votes for judges empowered to adjudicate war crimes offenses lodged by any rogue state against United States military or civilian personnel in fighting global terrorism or otherwise? That idea belongs in "Alice in Wonderland," "1984" or "Catch-22." President Bush should say so, act accordingly with Congress, and renounce Mr. Clinton's ill-informed John Hancock to the equally mischievous Rome Statute.

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