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"World Criminal Court a Slippery Slope For US"--An Op-Ed by Prof. Ruth Wedgwood

(This essay was originally published in the August 10, 2002, edition of the Boston Globe)

World Criminal Court a Slippery Slope For US
By Ruth Wedgwood, professor of law

This has been a season of friction with our European allies. In the debut of the International Criminal Court and in the post-Sept. 11 debate over Guantanamo detainees, a number of continental companions-in-arms have doubted our good faith, hissing with a post-Cold War pique. It's easy to tell when you're no longer wanted, in an age of folded nuclear umbrellas.

Some domestic observers of the Bush administration have shown the same disdain. As case in point, one may cite the views of Abner Mikva and Anthony Lake, recently expressed in these pages. Judge Mikva served with distinction as President Clinton's White House counsel. Lake was national security adviser.

But Washington's commitment to a robust war against terrorism and worries about a roving international court are not an abandonment of "our most basic national ideals." White House mugwumpery is plausibly explained by a grounded concern about US national security interests.

First, consider the International Criminal Court. Mikva and Lake argue that we are "defaulting on our basic beliefs" in opposing the use of a criminal sledgehammer to audit the actions of American soldiers and political leaders.

It was sensible policy to propose special-purpose United Nations tribunals to punish the perpetrators of genocide in Rwanda and the former Yugoslavia.

Since the mid-1990s, both courts have worked overtime to craft a common international procedure and present proof against the mountebanks who organized those massacres.

The trial of Slobodan Milosevic is underway in The Hague.

But the design of a court for all times and places is a far more intricate task. Many areas of the law of armed conflict are unsettled and remain the center of debate on the appropriate mixture of efficacy and restraint.

It is dangerous to abandon our effectiveness in battle out of risk-averse lawyering. Of course we should always be shocked at the violence of war. But armed force will sometimes be needed to protect our vital interests and shared moral standards against determined spoilers.

Belgrade's use of brickbats in the Kosovo campaign shows how a misappropriation of the law of war can be used as a weapon by a shameless adversary. At the outset of the NATO campaign to stop Belgrade's "ethnic cleansing," Milosevic ran to the 50-year-old International Court of Justice in The Hague, filing a civil suit to charge that the full range of NATO's tactics were illegal.

The United States escaped on jurisdictional grounds, but allies are still in the dock.

The International Criminal Court would raise the stakes yet further, permitting adversaries to fling criminal charges against individual members of the military, demanding criminal investigations as a way of changing the subject.

The abstract norms of the law of war sound clear enough. No deliberate attacks on civilians, and no disproportionate harm to civilians in the pursuit of a military objective. But there is disagreement on what is a civilian object, and what is undue harm. Standard tactics of our military missions have been hotly disputed by nongovernmental organizations.

To disable Milosevic's tanks and armored personnel carriers, we attempted to cut off Serbia's fuel supplies. To shut down antiaircraft radar, we disabled Kosovo's electrical grid. To keep the nationalist leader from maintaining tactical flexibility in deployment, we bombed the bridges over the Danube.

Each of these posed hardships for Serb civilians. But the war aim was to keep hundreds of thousands of Kosovar Albanians alive and to protect them from losing their lives and homes in Slobo's irrational spasm of ethnic cleansing after Rambouillet.

The touted treaty safeguard of "complementarity" says that the international criminal court will step in only if the United States is "unwilling or unable genuinely" to carry out an investigation and prosecution at home.

But that is no safeguard in the disputed areas of military doctrine. By definition, we will not prosecute a pilot or a commander for employing tactics that we believe are lawful.

The open desire to "progressively develop the law means that International Criminal Court judges will be urged to measure American military actions against standards that we have not accepted."

Indeed, consent has been abandoned even for jurisdiction. The recent debate over peacekeeping was ignited, ironically enough, by Europe's desire to have the court become a roving substitute for the United Nations Security Council, targeting the citizens of countries whose governments have rejected the treaty.

This third-party power grab, though cloaked in sheep's clothing, is the cause of Washington's attempt to make plain that we are serious in disputing the pretensions of a court too big for its treaty-britches.

There are methods of renewing American cooperation with our allies against the world's brutal dictators.

The ICC prosecutor, once appointed, should make clear the priority of using the court to quell massacres, forswearing the temptation to use it as a substitute for NATO headquarters.

The treaty parties could put forward one or more military lawyers as judges for the new bench, to make clear that the court's deliberations will include some understanding of the fog of war.

But the United States had every right to make clear that it would not join a court or treaty that even President Clinton thought was not ready for ratification. Manichean melodrama doesn't change that fact.

The second issue is the detention of fighters captured in Afghanistan as "unlawful combatants." Victory in war requires that one vanquish the adversary's soldiers. Once they are captured, there is a lawful right to detain them as combatants until active hostilities are over. This is a familiar prerogative under the Third Geneva Convention of 1949 and customary law as well.

Combatants are not detained as criminals, but rather to keep them from returning to the fight. It is a simple misapprehension to suppose that every person detained at Guantanamo as a combatant has to be put on trial for war crimes or else released.

Deciding that Al Qaeda and the Taliban do not qualify as a lawful fighting force is a profound question appropriately remitted to the highest level of responsibility.

The president's legal and factual finding was recently affirmed by Federal District Judge Tim Ellis III, in the pretrial motions surrounding the John Walker Lindh case.

Contrary to the belief of Lake and Mikva, the term "unlawful combatant" is a familiar term, stemming from the Supreme Court's decisions in World War II, with roots in the earlier Brussels, Hague, and Geneva treaty conferences.

Over time, we may need to have some procedure for review of the status of Guantanamo detainees. These combatants can't be "demobilized" in the way of conventional wars. Many were embarked on jihad and do not follow earthly authority. But one can reexamine periodically whether their attitude has changed and consider any reasons why they may no longer be a threat.

Our commitment to humane values must remain absolute, even in fighting the nation's wars. But this is not the same as naivete. Officials of the International Committee of the Red Cross have talked openly of the need to adapt the law of armed conflict to a new set of problems. We face a new kind of terrorist network with a taste for weapons of mass destruction, and must work hard to create fair standards in countering the threat.

But a dismal dyspepsia and moral hauteur are not always helpful in meeting the intellectual challenge of a new kind of war.

Ruth Wedgwood, a professor of law at Yale and Johns Hopkins universities, is a member of the secretary of state's advisory committee on international law.