- The Washington Times - Saturday, July 13, 2002

President Bush renounced his predecessor's signature on the 1998 "Rome Statute of the International Criminal Court" because it hung like a Sword of Damocles over United States military operations. Both the president and Congress have vocally declared noncooperation with the ICC as touchstones of United States national security policy. At present, Mr. Bush is seeking blanket immunity for the United States from ICC jurisdiction as a condition of participation in international peacekeeping forces. Bosnia and Afghanistan stand at the front of the queue.

To borrow a phrase from the film "Casablanca," the usual suspects are assailing Mr. Bush's splendid unilateralism and scoffing at his professed fear that the ICC menaces U.S. military operations. The leading actors include the European Union; world governmentutopians;chronic human-rights violators from the Third World; academic ingenues; and liberal media scourges. The detractors largely rely on Article 20 of the Rome Statute. It blocks ICC jurisdiction if competent domestic judicial authorities in the United States are genuinely prosecuting ICC war crimes.

But that defense misses the point. The most frightening flaw in the ICC is the Rome Statute's denunciation as war crimes tactical military actions that inflict damage to civilians or the environment but which the United States believes are pivotal to victory. Thus, Article 8, section 2(b)(iv) makes criminal the planning or launching of "an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated."

Collateral damage to civilians and the environment during war, however, is inescapable, especially when enemy combatants routinely hide in civilian homes, employ ambulances to smuggle weapons, build or station weapons in residential neighborhoods, or operate in environmentally sensitive areas.

Moreover, ranking discrete military operations on a scale of importance to victory is highly subjective, more akin to astrology than to astronomy.

For instance, historians and military gurus still debate whether President Harry Truman's atomic bombings of Hiroshima and Nagasaki were necessary to speedy Japanese surrender. And whether Jimmy Doolittle's 1942 air raid on Tokyo to boost United States morale justified the Japanese civilian deaths it occasioned will be debatable for the ages.

Article 8, in other words, arms the ICC prosecutor, unbeholden to the United States, to handcuff the nation's ability to wage war successfully by second-guessing our tactics or strategy. Article 27 multiplies the menace of Article 8 by denying any official ICC immunity even to President Bush or members of Congress. It declares: "This [Rome] Statute shall apply equally to all persons without distinction based on official capacity. In particular, official capacity as head of state or government, a member of a government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this statute, nor shall it, in and of itself, constitute a ground for reduction of sentence."

The following is thus no imaginary potential application of Article 8 of the Rome Statute to our war in Afghanistan against al Qaeda and Taliban.

Approximately a dozen United States attacks have caused civilian deaths and damage. Last week, helicopter gunships assaulted suspected enemy hideouts in four Afghan villages, including Karkak, then hosting a boisterous wedding ceremony featuring firearms. Estimates vary as to the aggregate number of civilian casualties. The Afghan count is 48 dead and 117 wounded. The military significance of the raid is debatable. Some military experts insist that al Qaeda and Taliban have been defanged; and, that further assaults in pursuit of a few remnants may be militarily counterproductive by arousing resentment among Afghan civilians. John Warden, a retired Air Force strategist and key planner of the 1991 Persian Gulf war, opined in The Washington Post last Sunday: "We are now doing things that appear to give marginal return but at a potentially very high cost."

Based on the foregoing, an ICC prosecutor might credibly charge the following Americans with Article 8 war crimes in Afghanistan: President Bush, Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, Secretary of State Colin Powell, National Security Adviser Condoleezza Rice, members of Congress who have voted legislative support for warring against terrorism, commander of allied forces in Afghanistan Lt. Gen. Dan K. McNeill, and every American soldier associated with Afghan civilian or environmental damage.

The ICC prosecutor (whose appointment by ICC judges is imminent) could be a military dunce or ideologically wrathful towards the United States.

Under Article 15 of the Rome Statute, his power to initiate investigations and prosecutions is virtually unbounded. And to believe the ICC will act impartially unskewed by Realpolitik is delusional. Even the heralded post-World War II Nuremberg Tribunal capitulated to the known Soviet lie that Adolf Hitler was responsible for the Katyn Forest massacre of Polish officers.

What seems conclusively to discredit President Bush's ICC critics is their unsettling silence over whether anything the United States has done in Afghanistan has violated Article 8. It is no scarecrow, but a troublesome enemy.

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