Before joining the US in a war on Iraq, Blair must lay down the law on key human rights principles. If he doesn't, British troops could face war crimes charges at the International Criminal Court, argues Kenneth Roth.
Tony Blair's decision to cast his lot with Washington in the looming war with Iraq isn't the only controversial part of British-American relations today. The Blair government has also been busy making concessions on the new International Criminal Court (ICC), which ideologues in the Bush administration are trying sedulously to subvert. Rather than trying to appease Washington, Blair should be pressing Bush to support key human rights principles.
If America and Britain were to go to war against Iraq, it would be the first British military action to be subject to ICC scrutiny. Having taken legal effect on July 1, this permanent tribunal for genocide, war crimes, or crimes against humanity can exercise jurisdiction if such crimes are committed by a national or on a territory of a government that has ratified the court's treaty. (The UN Security Council can also refer cases.) Neither the United States nor Iraq is among the 81 governments that have ratified that treaty so far, but Britain and the entire European Union are. The ICC thus could prosecute British forces for war crimes committed in Iraq, even though American forces would be exempt. The ICC would act only if British authorities were unwilling or unable to seek justice, but even this limited oversight is significant.
The Pentagon detests the ICC and wants to deny it any operational impact. But that is no longer an option for Britain. The criminal liability of its troops is now on the line. The British government has every right to insist that in any joint venture, the Pentagon be attentive to conduct that could result in war-crimes charges.
Because no one expects British generals to lead a possible war in Iraq, the doctrine of command responsibility is unlikely to implicate British officers even if US forces are accused of war crimes. But if the conduct at issue is a foreseeable part of US policy that Britain helps to implement, British troops could be accused of aiding and abetting war crimes or participating in a joint criminal enterprise. The lack of ICC jurisdiction over American partners in that enterprise would not preclude the court from pursuing Britons.
In recent wars, US forces have made mistakes and even violated international humanitarian law but have not committed war crimes. Still, it is possible that, should war erupt in Iraq, American and British forces might fall foul of, for example, the provision of the ICC treaty outlawing attacks on military targets that cause "clearly excessive" harm to civilians. That is especially so if they do not learn lessons from recent wars and take corrective steps.
The weapon most likely to produce such harm is the cluster bomb. A typical cluster bomb is a container that opens in mid-air and scatters up to 200 bomblets over an area the size of half a soccer field. Even in their new, "wind-corrected" form, cluster bombs are not precision weapons. If used where civilians are present, the size of the area they attack and the difficulty of directing them reliably mean that civilian casualties - sometimes substantial casualties - are foreseeable. A court conceivably could find that the use of cluster bombs in such circumstances is a war crime.
Compounding the problem is that many bomblets fall to the ground without immediately exploding. In Afghanistan, the number was as high as 20 percent, according to de-miners. These unexploded bomblets function as highly volatile anti-personnel landmines. They can kill and maim civilians long after the fighting has ended. That increases the chances that a court would find the civilian harm caused by cluster bombs to be clearly excessive.
Both Britain and the United States have cluster bombs. To avoid potential ICC prosecution of Britons, Tony Blair should insist that neither British nor American troops use cluster bombs in Iraq, or at least nowhere near civilians.
Undoubtedly, the Pentagon will kick and scream at this invocation of the ICC. But the price of British participation in a possible war should be, at the very least, American attention to British concerns about avoiding criminal liability.
A second challenge facing the Blair government is Washington's latest effort to exempt Americans from the ICC. Washington is worried because American soldiers would be subject to the court's jurisdiction should they commit a war crime or other atrocity on the territory of a government that has ratified the treaty. That is not a problem in the case of Iraq, but it could be a problem elsewhere.
US diplomats have been circling the globe to insist that governments send any American suspect home instead of to the court. Most EU members want to reject Washington's demand, but the Blair government would accept it. The legitimacy of the court depends on a common EU policy of rejection.
The ICC treaty reflects a preference for national over international prosecutions. The court is empowered to pursue a case only if the relevant national government is unable or unwilling to proceed. If more than one government wants to launch a prosecution, Article 98 of the ICC treaty allows governments to decide which has priority. Washington cites Article 98 to justify its latest demand.
However, governments that ratify the ICC treaty are obliged to ensure that people accused of war crimes or other atrocities are brought to justice. A government can fulfil that obligation either by sending the suspect to the ICC or by pursuing the case itself, subject to ICC oversight to ensure that justice is done. It doesn't meet this obligation to send a suspect to a government that doesn't recognise ICC oversight.
Some European governments have tried to address this problem by seeking a pledge from Washington to investigate and, if appropriate, prosecute any ICC suspect sent its way. But that isn't good enough, because the US government rejects ICC oversight. In the case of war crimes and other atrocities, the entire point of the ICC was never to trust unverified national pledges to bring suspects to justice. That is what allowed Augusto Pinochet, Idi Amin and Pol Pot to avoid a proper trial. Without an ICC scrutinising those pledges, there is nothing to prevent the use of political influence, or even intimidation and violence, to compromise national efforts to prosecute.
No ICC member thus should ever send an ICC suspect to a government that hasn't ratified the ICC treaty, unless that government consents to ICC oversight of its investigative and prosecutorial efforts. Anything less violates the spirit if not the letter of the ICC treaty.
Washington will vehemently resist giving such consent. But Washington also once resisted pledging not to seek the death penalty for suspects surrendered by European governments. Today, these pledges have become routine. If Europe can force Washington to accept its anti-death-penalty principles, it should be able to force Washington to live with its anti-war-crimes principles.
The dispute about agreements under Article 98 isn't just about the fate of a hypothetical American suspect. It is about the legitimacy of the ICC. As Washington knows, a court that exempts the superpower, whether explicitly or not, undermines its legitimacy. This is part of the Bush administration's strategy for killing the court. Countering this cynical strategy requires the Blair government and its European allies to insist that justice apply even to the superpower.
The Blair government is not eager to confront Washington on the ICC when it is trying to restrain the Bush administration's unilateralist instincts on Iraq. Fair enough. But there is no urgent need for an agreement under Article 98.
Practically, the ICC won't be in a position to seek the surrender of suspects until 2004. Better to defer the issue to a less fraught moment than to capitulate on a principle that will harm the legitimacy of this historic institution.
Tony Blair is also eager not to fuel Washington's animosity toward the court. But it is a little late. To preclude the prosecution ofUS citizens, in the last few months the Bush administration has threatened to close down UN peacekeeping, cut off military aid to court supporters, and even use military force to liberate any American held by the court. To give in now on this matter of principle will not placate Washington. It will reward Washington's worst ambitions for the court's demise, and encourage more of the same.
The creation of the ICC is the most important institutional development for human rights in over 50 years. Tony Blair may have a special relationship with George W. Bush, but no friend should indulge the Bush administration's unilateralist instincts at the expense of a court that stands to benefit us all, including the United States.