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March 26, 2005

Failure to Prosecute Deaths in Detention
Posted by Suzanne Nossel

Many liberals like blogger Steve Clemons are up in arms about the Pentagon's decision not to prosecute the 17 soldiers investigated in connection with three separate deaths of prisoners in Afghanistan and Iraq.  Army investigators had recommended that all 17 be charged, and human rights groups are said to be outraged by the decision not to act against them.

One side-effect of the decision is yet another potent illustration of the utter baselessness of conservatives' supposed fear of the consequences of joining the International Criminal Court.  Conservatives have long argued that by joining the Court we would subject our own servicemembers to prosecution for actions undertaken in as part of U.S. military interventions around the world.  The Court's proponents have long countered that the ICC's jurisdiction is limited to cases where the country in question is unable or unwilling to investigate or prosecute the wrongdoing - mainly situations where the country lacks a functioning legal system.  Court proponents maintain that such a finding would never be made in regard to a judicial system as developed as that of the U.S.

Those opposed to the U.S. joining the Court worry that in a case like that of these 17, where U.S. authorities declined to prosecute, the ICC could somehow step in.  Yet the Court's rules are clear that once an investigation has taken place, the ICC cannot second-guess the decision not to prosecute.  So, no matter how outraged human rights advocates may be, even if the U.S. were to join the Court the military will dispense its own justice, free from review or intervention by the ICC.

Although conservatives have yet to identify a plausible scenario of ICC meddling in U.S. military justice, their opposition to the ICC is untrammeled and is having a destructive affect on U.S. policy toward Darfur in particular.  While the Administration claims to want forceful action to counter what it has dubbed genocide, it has allowed anti-Sudan measures to languish for months in the UN Security Council for fear that a proposed referral of Darfur war crimes to the ICC will further legitimize that court (this snippet from a State Department press conference lays out the Administration's convoluted position). 

Darfur still offers the Administration a chance to begin to gracefully back down from a position that looks increasingly untenable as the ICC continues to build credibility.  By simply abstaining from a Security Council resolution putting Darfur at the ICC, the Administration would avoid outright reversing itself, but at the same time prevent its anti-ICC policy from shooting its Darfur policy in the foot.


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I'm not sure, Suzanne, that a decision by the military or government prosecutors of an ICC member state not to prosecute soldiers or other persons accused of crimes against humanity creates a total wall of immunity from international (or at least ICC) prosecution. The ICC prosecutor does have authority to question whether a state's process leading to such a conclusion was in fact a bona fide investigation. He or she almost certainly can investigate whether the government's investigation was in good faith, which in itself creates enough possibility of scrutiny to deter a flagrant whitewash. Of course, the ICC prosecutor would also have to persuade ICC judges to agree in such a circumstance, so he couldn't be a "Kevin Starr" runaway prosecutor. But there's probably a bit a shade of investigative potential still left in the highly constrained ICC.

I think Jeffrey's right, it is at least possible that the ICC could second-guess what they saw as a whitewash on the part of US military justice. But I do support the ICC, and there are two things to keep in mind for how the US could avoid such a thing, if we joined the court:

(1) We could, you know, *seriously prosecute* terrible abuses like Abu Ghraib, including the revolutionary concept of senior officials actually accepting responsiblity for what happens on their watch (as opposed to merely saying "I accept responsibility" and continuing on as if nothing happened).

(2) We should have a little faith in our ability to convince the international community that we're dealing with things properly (assuming, of course, that advice #1 is being implemented). We should be able to hold a Ken Starr-style runaway-prosecutor, or a politicized judge with an anti-US chip on his/her shoulder, accountable with the rest of the ICC member states. Holbrooke sometimes cites the example of the US losing its spot on the UN Human Rights Commission--once Colin Powell made it clear to the other countries that this was a serious issue, that was enough to take care of it. What accounted for a lot of the difference in the first place was that the US had been asleep at the wheel.

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