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Empowering the International Criminal Court By: Brett Joshpe
Jerusalem Post | Wednesday, September 16, 2009


Two things are happening on different sides of the Atlantic Ocean at the moment that bode poorly for freedom, democracy and defeating terror. As many are aware, US Attorney-General Eric Holder has appointed a special prosecutor to investigate whether CIA interrogations of al-Qaida members warrant criminal charges. Second - and less well publicized - the International Criminal Court's prosecutor, Luis Moreno-Ocampo, is contemplating whether the ICC has jurisdiction to investigate and potentially prosecute Israelis for alleged acts committed in Gaza during Operation Cast Lead.

The latter is troubling not just because an international tribunal is targeting the US's closest ally for waging a legitimate war of self-defense against terrorism. An overreaching ICC also has important implications for US officials. For one, the CIA issue could appear before the ICC at some point as well, despite the fact that the US - like Israel - is not currently a signatory to the court. Ocampo just announced that he was looking into possible war crimes committed by NATO soldiers, including Americans, in Afghanistan, which could foreshadow an investigation into other alleged "crimes" committed by US personnel.

WITH AN internationalist mentality that dominates his administration, President Barack Obama seems incapable of standing up either to far-left domestic or international pressure. Despite his pledge to "look forward" after the Bush administration, he is now squarely embroiled in the dirtiest kind of political fight, the kind that could lead to criminal charges. Furthermore, investigating CIA interrogations will undoubtedly chill future intelligence probing and hamper America's ability to collect information on possible terrorist plots.

Which is why, legally, the implications for the administration's recent decision to launch an investigation could be even greater than first realized. An American prosecutor should recognize the political radioactivity of pursuing Bush administration or CIA officials for trying to extract information from suspected terrorists. Americans, by and large, will not support it, and there will be a political price to pay. That is why it may easier to punt the issue to the ICC. Doing so would enable the Obama administration to disclaim responsibility for the decision, hence washing its hands partially of the investigation it started.

It would also serve as a huge concession to the far-left, which has sought ICC accession since the court's creation in 2002. Secretary of State Hillary Clinton has already expressed "great regret" that the US is not a signatory to the court. State Department legal adviser Harold Koh, also known for his internationalist views, criticized the Bush administration for "attacks on... the International Criminal Court," while also acknowledging that "the US government has long expressed concern about the authority of the ICC prosecutor to initiate investigations of US soldiers and government officials stationed around the world."

The ICC's prosecutor is perilously close to doing exactly that with Israel. Organizations like Amnesty International and Human Rights Watch, which are also highly critical of the US, are making wildly inaccurate accusations that Israelis committed war crimes and crimes against humanity during Operation Cast Lead. They continue to meet with Ocampo and publish reports urging him to initiate an investigation. Richard Goldstone's much-anticipated report to the United Nations Human Rights Council published yesterday said that both sides committed "war crimes" as well as "possibly crimes against humanity." The report, whose original mandate was only to investigate wrongdoing on the part of Israel, is likely to provide additional encouragement to Ocampo to move forward.

MEANWHILE, OBAMA continues to face domestic pressure from his liberal base on issues like health care and international affairs. If the US were to join the court or even allow it to investigate alleged interrogation abuses on an ad hoc basis, which is permitted under the Rome Statute, it would assuage the far-left, while further crippling our military apparatus and subjecting US officials and soldiers to second-guessing from unaccountable international bureaucrats. Yet it could happen, as it would satisfy some liberals' insatiable desire for some Bush administration flesh and provide the ultimate US mea culpa to the world community, while passing the ultimate decision whether to prosecute to an outsider.

It is shameful that Obama is not standing up, both to domestic and international pressure, and defending Israelis and Americans who risk their lives fighting for freedom. The war on terror is daunting enough without getting kicked in the gut by the very system and people they are protecting.


Brett Joshpe is co-author, along with S.E. Cupp, of the recent book, Why You''re Wrong About the Right: Behind the Myths: The Surprising Truth About Conservatives (Simon & Schuster). Mr. Joshpe also founded Students for Protecting America while attending Harvard Law School, an organization that supported the war in Iraq. He currently practices law in New York City at Wrobel & Schatz LLP.


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