Posted by Kenneth Anderson:
International Criminal Court Prosecutor Opens Probe into Afghanistan NATO
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http://volokh.com/archives/archive_2009_09_06-2009_09_12.shtml#1252632217
The Wall Street Journal reports today that the prosecutor�s office of
the International Criminal Court has begun opening investigations into
allegations of war crimes and crimes against humanity by NATO forces,
including US forces, in Afghanistan. The report said that the
prosecutor said that it was also probing alleged violations by the
Taliban. ([1]Joe Lauria, �Court Orders Probe of Afghanistan Attacks,�
WSJ, September 10, 2009.)
The prosecutor said forces of the North Atlantic Treaty
Organization � which include U.S. servicemen � could potentially
become the target of an ICC prosecution, as the alleged crimes
would have been committed in Afghanistan, which has joined the
war-crimes court. However, every nation has the right to try its
own citizens for the alleged crimes, and the ICC can step in only
after determining a national court was unable or unwilling to
pursue the case.
Luis Moreno-Ocampo, the ICC prosecutor, said in remarks Wednesday
that:
The ICC�s preliminary inquiry is �very complex,� Mr. Ocampo said.
The court is trying to assess allegations of crimes including
�massive attacks,� collateral damage and torture, he said, adding
that his investigators were getting information from human-rights
groups in Afghanistan and from the Afghan government.
Anyone following the news from Afghanistan has a good idea of what the
NATO actions in question are:
Mr. Ocampo�s remarks come after NATO forces this week acknowledged
that civilians were among the dozens killed in an airstrike on two
hijacked fuel trucks. They were struck by U.S. warplanes after
being called in by German ground command.
The killings were the latest in a series of U.S. airstrikes that
have inadvertently killed Afghan civilians, U.S. officials say.
Leave aside the obvious political questions of the position this puts
the Obama administration in, with regards to its oft-stated goal of
getting more cooperative with, if not actually joining, the ICC. The
more important legal question is what kinds of violations of the laws
of war would be at issue? Moreno-Ocampo gave some indication in his
remarks (emphasis added):
Mr. Ocampo said that under certain circumstances, so-called
collateral damage � the inadvertent killing of civilians in a
military strike � could be prosecuted as a war crime. �It�s very
complicated,� Mr. Ocampo said. �War crimes are under my
jurisdiction. I cannot say more now because we are just collecting
information.�
That Ocampo would address directly as an issue, up-front, the
prosecution of excessive but inadvertent collateral damage as such -
inadvertent killing - as a war crime, rather than intentional,
categorical violations of the laws of war such as the direct targeting
of civilians, raises the legal stakes very considerably ....
([2]show)
There are several possibilities of violations of the laws of war that
might fall under this category - violations of the principle of
distinction, for example, or, under Protocol I standards (to which the
US is not party and not all of which it regards as binding customary
law), failure to warn or separate out the civilian population in
advance of an attack, which invoke some notion of intentional or
negligent wrong doing. Underlying these issues, as well as
constituting a separate issue, is proportionality jus in bello - the
question of whether the reasonably anticipated civilian harm is
excessive in relation to the reasonably anticipated benefits of the
attack.
As it happens, I am writing these days on the issue of
proportionality, and so I am naturally deeply interested - and deeply
skeptical. Violations of these kinds are frequently asserted by human
rights groups, such as Human Rights Watch in its various Gaza and
other reports. But in the post-war period, I am not aware (and once a
couple of years ago was able to put a squad of highly paid law firm
associates to the task of looking up stuff) of any case that
specifically claimed, over the traditional �commander�s battlefield
discretion,� even to prosecute a violation of proportionality as such,
let alone a conviction for such a case. As international criminal
lawyer Kevin Jon Heller remarked in an Opinio Juris post some months
ago on a related question, although possible in theory, it seems
pretty unlikely in practice.
To be clear, the kind of "disproportionality" at issue has, first,
nothing to do with simple comparing numbers of casualties (e.g.,
number of Israelis killed in rocket attacks versus numbers of
Palestianians killed in Gaza or Lebanon armed actions). These
comparisons are often made in the press, sometimes in academic
discussions, and elsewhere, but they do not go to the legal issue of
proportionality jus in bello.
Second, moreover, the kind of disproportionality at issue here is not
the question of �wanton destruction and disproportionate devastation
not justified by military necessity.� That second is a question of
intentional wantonness or wanton and reckless negligence in which, in
the extreme case, no effort was made even to determine whether the
military action had a military necessity or how that measured up
against civilian damage. The issue in the case of genuine inadvertence
is where the commander did make an effort to weigh up likely
consequences - and the prosecutor now proposes to second guess. There
is a good reason why no one, so far as I know, has sought to prosecute
the commander�s good faith judgment after the fact.
It is, to say the least, remarkable to me that the ICC prosecutor
would even consider such a thing now. The issue was raised following
Kosovo, and the prosecutor there declined to go forward after a
preliminary investigation. But a big part of the reason why the
prosecutor declined to go forward was on account of the paucity of
legal standards by which even to evaluate a claim of criminal action
based upon a commander�s good faith exercise of battlefield
discretion. In other words, it was not merely a factual problem, it
was a lack of legal standards on which to proceed with individual
criminal liability. I fail to see what has changed that would convince
the prosecutor that he has any better set of legal standards now.
In any case, I can imagine nearly no ICC issue on which a deeper wedge
could be driven between the ICC and even the Obama administration. A
good faith commander�s judgment? One can, of course, try to redescribe
the same facts as a failure to attempt to distinguish or a failure to
warn - this is a standard legal analysis in, for example, HRW reports
on Gaza addressing targeted killing, and presumably because, at least
on the surface, the effect is to shift legal analysis from "weighing
up" to "categorical" issues of intentionality. But that's not
persuasive; these analyses under discrimination and distinction and
duties to warn turn out, under pressure, to be just as much weighing
up. Of course they would be, going directly to the same facts.
But all this winds up putting the Obama administration in the same
position of having the ICC prosecutor "probing" the battlefield
judgments made in good faith by US commanders. In one sense, I
suppose, the politics of the situation are oddly easy for the
administration�s leading transnationalist lawyers - Harold Koh, Sarah
Cleveland, others - because this can be seen as so far beyond what the
US would regard as acceptable that it is easy for them to denounce
this, while holding open possibilities on other issues such as
extra-territorial application of the ICCPR or other things; it might
provide a convenient route for transnationalist lawyers to establish
sovereigntist bona fides. But maybe not. Maybe this amounts to just a
repeat of what happened in the Kosovo probe, in which a probe was
initiated and closed without any forward movement. Maybe that is what
Ocampo is holding out for. I�m not very clever about the politics of
these things. If there are knowledgeable commenters who have a sense
of what is going on either in the US government, NATO, or the ICC
prosecutor, I would be grateful to hear about it in the comments.
What I am clear about is that this question is the moral and legal
argument of much modern war between a well armed state adversary and
an insurgent, in reductio. The insurgent resorts to violations of
categoricals, such as attacks directly aimed upon civilians, or the
use of human shields, or other violations that are against categorical
rules. The state and its army engage in attacks that raise questions,
among the human rights monitors, the ICC prosecutor, and others, that
the attacks were in some way, some sense or other, disproportionate.
Not categorical violations, but claims of violations that involve, by
their nature, legal judgments weighing up radically different things,
civilian harm and military advantage. Moreover, the kinds of possible
violations of the laws of war that can be contemplated here all raise
issues entirely relevant to targeted killing via Predator -
distinction, failure to warn civilians, excessive civilian harm, etc.
Readers of my academic work understand that I am no great fan of the
ICC. Still, I cannot imagine that it can be in the ICC�s legal or
political interest to seek to cross that bridge as a matter of
individual criminal liability; I equally understand that this trope is
at the heart of contemporary conflict between states and non-state
actors. (Cross posted in somewhat different form from Opinio Juris;
I'll go back and try to add some more links later.)
([3]hide)
References
1. http://online.wsj.com/article/SB125253962307797635.html
2. file://localhost/var/www/powerblogs/volokh/posts/1252632217.html
3. file://localhost/var/www/powerblogs/volokh/posts/1252632217.html
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