Editorial
Dudney, Editor in Chief
Warfare v. Lawfare
Washington, D.C., May 19, 2010
I n December 1999, the chief pros-
ecutor of a UN war crimes tribunal
revealed she was sifting evidence that
NATO’s pilots and commanders—many
of them American—may have broken
international law by bombing Serbia.
The claim was a shocker. Amid sharp
US criticism, the prosecutor backed
down.
That, however, was before the In-
ternational Criminal Court came into
force in mid-2002. Such legal ideas are
no longer so rare or easily dismissed.
Indeed, military and political leaders
could soon face a dramatically denser
tangle of legal dangers.
In June, ICC member states meet-
ing in Kampala, Uganda, will decide
whether to add a “crime of aggression”
to offenses it will investigate. Member
nations would be obliged to arrest
officials accused of the crime for trial
in The Hague. It could happen to US
leaders and service members, despite
the fact Washington has refused to join
the court.
The UN-sponsored Rome Statute of
1998 authorized creation of an inde-
pendent and permanent court to end
impunity for perpetrators of genocide,
crimes against humanity, war crimes,
and the vague crime of “aggression.”
Signatories could not explain the latter
term, though, and left it undefined and
unprosecutable.
Now, members are weighing a draft
definition. It holds that a crime of ag-
gression occurs when someone directs
use of force in a way that is a “mani-
fest violation” of the UN charter. The
charter prohibits nondefensive use of
force and provides for Security Council
authorization.
US officials say that, by the ICC’s
draft definition, NATO leaders prob-
ably would have been judged criminal
for the 1999 war to stave off Serbian
attacks in Kosovo. The Iraq War, which
also lacked Security Council approval,
would be unlawful, too.
Worse, there exists no impartial body
to decide which side is an aggressor.
Precisely who initiates and directs a
war is murky, so literally hundreds of
officials would potentially be subject to
indictment, arrest, and prosecution, say
legal experts. It is a standing invitation
to abuse. In fact, concern about politi-
4 AIR FORCE Magazine / June 2010
By Robert S.
cized prosecution is why the US, China,
Russia, India, and Israel for years
have refused to join the ICC. Refusal,
however, wouldn’t matter to this court.
Military action by nonmembers could
still be characterized as “aggression,”
if it happened on the soil of one of the
ICC’s 111 member states.
Airpower has long provoked sharp
debate about legalities. Some argue
bombing is inherently inhumane and
uncivilized because many victims are
Who will stand in
judgment of US troops
and leaders?
civilians. This allegation has cropped
up in every war and will again.
The Clinton Administration helped
negotiate the Rome Statute but couldn’t
persuade others to address US military
concerns about politicized prosecu-
tions. Though President Clinton signed
the Rome Statute, he slammed its “sig-
nificant flaws” and never sought Senate
ratification, which was implausible in
the extreme.
President George W. Bush took a
more hostile stance. His Administration
objected to a lack of external checks
on the powers of the court and dilution
of Security Council authority. Bush not
only suspended Clinton’s signature but
also negotiated agreements with some
100 countries to prevent surrender of
US personnel to the ICC. This worked,
and little changed until recently.
President Obama took office ready
to re-engage to some extent with the
ICC. Secretary of State Hillary Clinton
last summer declared, “This is a great
regret that we are not a signatory.” The
Administration began participating as
observer and pledged to assist some
of its investigations.
However, even ICC-friendly Obama
officials have argued against the ag-
gression prosecutions. They recognize
that the US is unique in the world for
its peacekeeping and humanitarian
operations, having forces deployed in
scores of nations.
The developing US position seems
to be that the court should obtain a
Security Council finding of aggression
before acting.
Whatever the outcome of the aggres-
sion issue, US problems with the court
are sure to continue.
Last September, ICC chief prosecu-
tor Luis Moreno-Ocampo reported he
was collecting information about pos-
sible war crimes committed by NATO
forces in Afghanistan. Drawing scru-
tiny, he said, were “massive attacks,
collateral damage exceeding what is
considered proper.”
He has said that inadvertent killing
of civilians in a military strike could in
some cases be deemed a war crime.
Moreno-Ocampo specifically men-
tioned unmanned aerial vehicle strikes
against terrorist leaders in Afghanistan
and Pakistan.
Such actions have begun to affect
Western military norms. The Wall
Street Journal, in a Nov. 26 critique,
has Moreno-Ocampo recounting a
conversation with a NATO legal advi-
sor; the advisor said troops are trained
to realize they could be arrested and
brought to the ICC on war crimes
charges with the help of evidence
provided by NATO itself. This is hardly
a recipe for trust and confidence.
Maj. Gen. Charles J. Dunlap Jr., a
former USAF deputy judge advocate
general, has warned about “lawfare,”
defined as “the use of law as a weapon
of war” by foes who exploit “real, per-
ceived, or even orchestrated incidents
of law of war violations” to undermine
superior military power.
Obama has pledged to consult
closely with military leaders about the
court. It is hard to believe the White
House will get positive feedback with-
out major changes in ICC governance.
Without military support, there is vir-
tually no chance that the required 67
Senators will vote to ratify the Rome
Statute.
At bottom, the major question is not
whether international law will be ob-
served, but who will stand in judgment
of US troops and leaders.
Clearly, that should be the United
States itself. No nation has done more to
promote human rights, democracy, and
the rule of law. It certainly doesn’t need
a world court of unaccountable jurists
to tell it how to stay within international
law or deal with those few Americans
who might violate those laws. n