- The Washington Times - Friday, May 9, 2003

The Hague sets dangerous precedent for U.S. military Allied commander Gen. Tommy Franks is now the target of war crimes charges. A Belgian lawyer representing 10 Iraqis is preparing to ask a Brussels court to indict Gen. Franks for having “command responsibility” over purported war crimes committed by coalition forces. Among the crimes listed in the complaint are the bombing of a marketplace in Baghdad, the shooting of an ambulance and the failure to prevent the mass looting of hospitals. The complaint has proven to be a great embarrassment for the Belgian government.In 1993, Brussels gave its courts the power to try non-Belgian citizens for war crimes committed anywhere in the world. The law of “universal jurisdiction” has been used by numerous groups — most of whom are anti-American and anti-Israel — to try world leaders for war crimes. Complaints are pending against former President George Bush and Secretary of State Colin L. Powell over the 1991 Persian Gulf War, as well as Israeli Prime Minister Ariel Sharon.Although the law has been amended in order to make it more difficult for indictments to be issued against top-level political leaders, it does not provide protection for U.S. military officials. If the complaint proceeds against Gen. Franks, there is the possibility that he could be tried, convicted and imprisoned, should he have the misfortune of entering Belgium. The case has outraged Washington, which has threatened Brussels with diplomatic retaliation if the complaint goes forward. One option is to have NATO headquarters moved from Brussels.But the complaint against Gen. Franks should not be dismissed as simply a case of a nutty statute and excessive judicial activism. It shows that the Bush administration was correct in its skepticism of the new International Criminal Court that came into being last year. The United States has refused to sign the treaty on the grounds that American officials would be subject to politically motivated prosecutions.The administration has also rightly criticized the principle of “command responsibility” that is being used as the basis of the complaint against Gen. Franks. The theory of “command responsibility” stipulates that political and military leaders are legally culpable if they fail to do “everything possible” to prevent isolated acts committed by individual soldiers in battle. Under that logic, Winston Churchill and Franklin D. Roosevelt are war criminals for the allied bombings of Dresden, or Gen. Norman Schwarzkopf and Gen. Wesley Clark should be indicted for mistakes committed in the Persian Gulf War and NATO’s bombing of Yugoslavia. The result of codifying such a principle in international law will make waging war all but impossible without risking exposing U.S. leaders to criminal prosecution. However, while the administration criticizes the theory of “command responsibility” in the complaint against Gen. Franks, it continues to turn a blind eye to its application by the Balkans war crimes tribunal in The Hague against generals in the former Yugoslavia. The most notable case is that of Croatian Gen. Ante Gotovina, who has been indicted on charges of “command responsibility” for a 1995 military operation that effectively ended the Croat-Serb war.Supported by the United States, Gen. Gotovina led a sweeping military offensive — known as Operation Storm — that enabled Croatia to restore its control over territories annexed by local Serb forces loyal to Yugoslav dictator Slobodan Milosevic. The operation not only was instrumental in preventing Mr. Milosevic from achieving his goal of a “Greater Serbia,” but it also averted a humanitarian nightmare in neighboring Bosnia. By the summer of 1995, Serb paramilitaries had encircled Bihac and were relentlessly shelling the city. Hundreds of thousands of Bosnian Muslim refugees were trapped inside. Gen. Gotovina’s forces smashed the Serb lines and prevented atrocities from occurring — atrocities that would have made the massacre at Srebrenica pale in comparison. The general is a hero; not a war criminal.However, The Hague tribunal’s chief prosecutor, Carla Del Ponte, under pressure from Belgrade and Brussels to not be “biased” against the Serbs, has issued a bogus indictment against Gen. Gotovina on charges of “command responsibility” for failing to prevent isolated attacks on civilians and the mass looting of homes. Mrs. Del Ponte is looking for a Croatian scapegoat so that her office can appear even-handed in its prosecutions of Serbian war criminals. The indictment against Gen. Gotovina has rightly outraged the Croatian public, who view it as a politically motivated prosecution against one of their country’s leading war heroes. The general has refused to hand himself over to the tribunal, and is hiding in an undisclosed location. The Gotovina indictment is a dangerous precedent that could be used against U.S. officials in the future. One senior U.S. official has warned that “the indictments issued by The Hague tribunal based on the theory of command responsibility risks establishing the principle in international law.”The American government has been slow to respond to the precedents established by the Gotovina case. Now, it is reaping the bitter fruits of its indifference and is exposing to the world that it holds high standards for its generals, but supports flimsy indictments against foreign generals. The Bush administration is justified in its outrage at the complaint against Gen. Franks. Yet, by the same token, how can it continue to insist that this ludicrous policy of “command responsibility” should be applied to the heroes of other nations?Loredana Vuoto is an editorial writer for The Washington Times.

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