International Law and the War on Terrorism (100809) by J. F. Kelly, Jr.

A commentary by J. F. Kelly, Jr. President Barack Obama seems greatly concerned about what other nations think of us. He has implemented a policy of reaching out to adversaries and consulting with friends. No longer, he says, will the United States go it alone without regard for world opinion, a departure, he implies, from the failed policies of his predecessor. Mr. Obama refers often and fondly to international law and that arbiter of international behavior, the United Nations. Under his leadership, the United States has even become a member of the UN Human Rights Council, whose main accomplishment in its three years of existence has been to repeatedly condemn Israel for alleged human rights violations while Israel’s enemies largely get a free pass. In fact, the council has issued more condemnations against Israel than against all the other 191 UN members combined. A recent UN probe into the 2008 Gaza conflict which was provoked by daily rocket attacks against Israeli cities concluded that both Israel and “Gazan armed groups” committed war crimes and recommended that the Security Council order both sides to investigate these alleged crimes or be referred to the International Criminal Court (ICC). Israel, a democracy, actually cares about world opinion and has already initiated investigations into civilian loss of life at the hands of its armed forces. “Gazan armed groups”, apparently a politically correct name for terrorist organizations like Hamas, on the other hand, couldn’t care less about world opinion and are unlikely to be investigating themselves for human rights violations. With a membership that provides disproportionately heavy weight to Asian and African Muslim states hostile to Israel and the West, the UN Human Rights Council is a farce that the United States dignifies by joining. Meanwhile, the ICC is looking into accusations of war crimes and crimes against humanity in Afghanistan to determine if cause exists to open a formal investigation. The court’s chief prosecutor, Luis Ocampo, an Argentine, said that NATO forces—which include U.S. forces—could potentially become targets since Afghanistan is a signatory to the ICC treaty. Mr. Ocampo was further quoted as saying that under certain circumstances, so-called collateral damage, or the inadvertent killing of civilians, would be prosecuted as war crimes, something that President Obama might wish to reflect upon incident to his Afghanistan strategy reassessment. “It’s very complicated,” concluded Mr. Ocampo. Indeed it is, which is why Mr. Obama should not prevail upon the Senate to ratify the Rome Statute of 1998 which set up the so-called world court. The U.S., China and Israel were among the seven nations that voted against the treaty. The court was originally intended to deal with international drug trafficking but expanded into war crimes as a result of the ethnic cleansing and other atrocities that took place during the conflict in the former Yugoslavia. The Bush administration declined to ratify the ICC treaty because of the specter of American forces, which do the heavy lifting in the war on terrorism, being accused of war crimes in the performance of their duties and put on trial in The Hague. A nation has the right to try its own people for such crimes but the ICC can step in if it determines that a nation is unwilling or unable to do so. U.S. Supreme Court Justice Sonia Sotomayor, in a speech prior to her nomination to the high court, was quoted as saying that “ideas have no boundaries” and that “international law and foreign law will be very important in the discussion about…unsettled issues in our legal system.” To discourage the use of international laws, she said, would be asking American judges to close their minds to good ideas. Ideas may have no boundaries but legal systems clearly do, something that American travelers abroad would do well always to remember. Nations differ greatly over what constitutes war crimes or crimes against humanity which is why the United States must not ratify any treaty that subjects its military forces or their civilian leaders to the tender mercies and legal opinions of foreign courts for alleged war crimes or crimes against humanity in the performance of their lawful duties. Copyright 2009 by J. F. Kelly, Jr.