Wall Street Journal (11.27.09)

Prosecuting American 'War Crimes'

The International Criminal Court claims jurisdiction over U.S. soldiers in Afghanistan.

By DANIEL SCHWAMMENTHAL

Secretary of State Hillary Clinton expressed "great regret" in August that the U.S. is not a signatory to the International Criminal Court (ICC). This has fueled speculation that the Obama administration may reverse another Bush policy and sign up for what could lead to the trial of Americans for war crimes in The Hague.

The ICC's chief prosecutor, though, has no intention of waiting for Washington to submit to the court's authority. Luis Moreno Ocampo says he already has jurisdiction—at least with respect to Afghanistan.

Because Kabul in 2003 ratified the Rome Statute—the ICC's founding treaty—all soldiers on Afghan territory, even those from nontreaty countries, fall under the ICC's oversight, Mr. Ocampo told me. And the chief prosecutor says he is already conducting a "preliminary examination" into whether NATO troops, including American soldiers, fighting the Taliban may have to be put in the dock.

"We have to check if crimes against humanity, war crimes or genocide have been committed in Afghanistan," Mr. Ocampo told me. "There are serious allegations against the Taliban and al Qaeda and serious allegations about warlords, even against some who are connected with members of the government." Taking up his inquiry of Allied soldiers, he added, "there are different reports about problems with bombings and there are also allegations about torture."

It was clear who the targets of these particular inquiries are but the chief prosecutor shied away from spelling it out.

Asked repeatedly whether the examination of bombings and torture allegations refers to NATO and U.S. soldiers, Mr. Ocampo finally stated that "we are investigating whoever commits war crimes, including the group you mentioned."

The fact that he avoided a straightforward "I am looking into possible war crimes committed by American soldiers" showed that Mr. Ocampo is aware of the enormity of crossing this legal and political bridge. Appointed in 2003 for a nine-year period, the 57-year-old Argentinian has—so far—established a record of cautious jurisprudence.

Mr. Ocampo is famous in his home country for prosecuting military juntas as well as starring in a reality program where he adjudicated private disputes. And in his first six years at the ICC, he pursued real evildoers. He indicted Ugandan rebel Joseph Kony, militia leaders from the Congo and Sudan's President Omar al-Bashir, responsible for the genocide in Darfur. Yet collecting information about possible war crimes by American soldiers smacks of just the sort of politicized prosecution critics of the ICC had always warned about.

Mr. Ocampo remained tight-lipped about the specifics of his preliminary examination. Asked whether waterboarding—a practice that simulates drowning without causing lasting physical harm—is a form of torture produced a telling "no comment." Yet if the Obama administration considers this practice torture, one has to wonder if the ICC's chief prosecutor would give it his stamp of approval.

There is also the issue of whether Predator strikes of unmanned drones targeting terrorist leaders in Afghanistan and Pakistan—as carried out in the very first week of the Obama presidency—are part of the bombings he's looking into. Mr. Ocampo chuckled and answered evasively. "We have people around the world concerned about this," he said, and when pressed, added, "Whatever the gravest war crimes are that have been committed, we have to check."

"Gravest" is the operative word here. The court was established to "end impunity for the perpetrators of the most serious crimes of concern to the international community," as stated on the ICC's Web site. This would suggest that even if U.S. soldiers have committed war crimes by the prosecutor's definition, the ICC would have no reason to get involved as those transgressions would surely be insignificant compared to the butchery in places like Sudan or Congo.

Mr. Ocampo's own words, though, suggested that he disagrees. I asked him if he was going to prosecute the worst crimes in his jurisdiction or the worst crimes in a particular case, such as Afghanistan, irrespective of how they compare to crimes around the world. He paused before answering.

"Normally," he said (another pause) "we select situations which are grave, for instance when I choose. . . ." Mr. Ocampo didn't finish the sentence, sighed and began afresh: "Both [scenarios] are right. Normally, we open investigations in the worst situation in the world and in some cases [countries] we investigate the worst situation."

This is an expansive and controversial interpretation of the court's mandate, one that may put an end to the debate about whether former President George W. Bush, fearing just such judicial activism, was justified in unsigning the Rome Statute his predecessor, Bill Clinton, had endorsed. Although the prosecutor's preliminary examination may not result in a formal investigation of Americans, the mere potential of a legal confrontation between the court in The Hague and Washington should be disconcerting to the White House, not to mention to all Americans.

In any event, the ICC's very existence is already changing the way Western nations fights wars. Mr. Ocampo recounted how a legal adviser to NATO told him that troops these days are trained to realize that, in case of transgressions, they could be arrested and brought to the ICC on war crimes charges with the help of evidence provided by NATO itself.

"That is the new world," Mr. Ocampo said proudly. I asked the obvious follow-up. "If this is the 'new world,' why do you bother collecting information about NATO and U.S. troops in Afghanistan?" Why, in other words, when his task is to end the impunity for the worst war crimes, does he spend his limited resources on the most advanced democracies in the world—which operate under strict rules of engagement, have their own chain-of-command investigations and swift prosecution of criminals? Mr. Ocampo got slightly irritated.

"You are suggesting that we are a court only for the Third World. That's what the Arab world said about Bashir, that we are using double standards," he explained. "I said no, I prosecute whoever is in my jurisdiction. I cannot allow that we are a court just for the Third World. If the First World commits crimes, they have to investigate, if they don't, I shall investigate. That's the rule and we have one rule for everyone."

Mr. Ocampo—who has a photo of himself with the head of the Arab League, Amr Moussa, on his windowsill—could have pointed out to his Arab interlocutors that the real double standard was their own complaining about alleged Western aggression against Muslims while they protect Sudan's Bashir, the greatest butcher of Muslims in modern history. The fact that Mr. Ocampo mentioned the Sudanese perpetrator of genocide in the same breath with alleged crimes of NATO soldiers shed light on what the International Criminal Court may have in store for the U.S. in the future.