Juridical warfare: the neglected legal instrument

Joint Force Quarterly, Jan, 2008 by Harvey Rishikof

But what is one to do with Khalid Sheikh Mohammed, Abu Zubaydah, or Ramzi Yousef when traditional law enforcement methodologies are unsuccessful? It must be underscored that Khalid Sheikh Mohammed did not receive any form of due process for 4 years from capture to his first administrative hearing. Yet what of the cases of Kahled El-Masri and Abu Omar, men captured and then released and not charged? How do such practices square with world moral leadership and rule of law? Cieply argues for a middle ground, a rendition policy with transparency and some type of due process. Time will tell if such middle ground is possible and acceptable to world opinion.

The last set of essays by Commander Brian Hoyt, USN, "Rethinking the U.S. Policy on the International Criminal Court" and James Terry, "The International Criminal Court: A Concept Whose Time Has Not Come," debate the U.S. decision not to ratify the Treaty of Rome's International Criminal Court (ICC). As pointed out by the authors, 104 countries, including two of our staunchest allies, Canada and Great Britain, have ratified the ICC. Hoyt makes a strong case for the court, refuting the traditional objections to it concerning its overbreadth on jurisdiction, infringement on U.S. sovereignty, the weak procedural protections for defendants compared to the U.S. criminal code, and the ICC's susceptibility to political manipulation by overzealous prosecutors. Hoyt is critical of the Bilateral Immunity Agreements (Article 98 Agreements) that the United States has entered into with individual countries, which some have seen as highly pressured exertions of American power on our allies and friends to undercut the strength of the treaty.

Terry takes the exact opposite view of the ICC, highlighting the risks to U.S. Servicemembers serving in UN-monitored military conflicts. Under the ICC, Servicemembers forego American guaranteed constitutional rights involving evidence production, hearsay, and double jeopardy protections. Terry is also concerned about the corrosive effect the court could have on other UN institutions, particularly the Security Council. His essay highlights Congress's role in passing the American Service-members' Protection Act of 2002 requiring immunity from ICC prosecution before the United States can participate in UN peacekeeping and peace enforcement operations.

In essence, the ICC debate acts as a foil to the general juridical warfare dilemma confronting the United States as a world power. Although the Nation is a historic leader in international law, there are some who believe that Washington views the creation or emergence of these new international institutions, such as the ICC, Kyoto environmental agreements, new Law of the Sea convention, and Ottawa anti-landmine convention, as attacks on national sovereignty and restrictions on U.S. ability to maneuver in the international arena. Often these conventions are viewed as mechanisms to skirt the authority of the Security Council and the "Big Power" veto that helped legitimize the original United Nations. Ironically, the United States, the preeminent rule of law society, is made to look as the "anti" rule of law rogue, pursuing its self-interest at the expense of world norms based on its rejections of these conventions. The mistrust of the United States is evident in official pronouncements that highlight the fear of international political manipulation or persecution and of projected attempts to publicly discredit U.S. policy.