A Proportional Response
Bartlet considers extreme measures (1) in deciding how to retaliate in the wake of the shooting down of an American military plane. Josh hires Charlie Young to be Bartlet's aide but worries over the appearance of having a young black man as Bartlet's personal assistant.
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War crimes, International Criminal Court (last updated January 19, 2002) (back to top)
What Bartlet briefly considers doing in this episode is a war crime. Though, even if he had gone through with the action, he could not be prosecuted for such under current international law.
There are some generally held principles as to how a war should be conducted. International law bans certain acts of war (such as genocide) and certain methods of conducting war (such as land mines and gas warfare), but these provisions are difficult to implement, particularly with the international community's failure to establish an international criminal court with scope beyond particular conflicts. Ethical theory, particularly the just war tradition, generally holds that war must be conducted according to principles of utility and proportionality, so that any military action is necessary to victory.
Still, the most famous war crime in United States history - the massacre of about 400 Vietnamese civilians in the village of My Thai on March 16, 1968 - resulted in relatively little legal consequence. Only four participants were ever brought to trial, and only one, Lieutenant William Calley, was convicted and then sentenced to life imprisonment. By this time, however, Calley had gained vocal support from the military; President Richard Nixon quickly freed Calley from prison and instead placed him under house arrest while awaiting consideration of his appeal. By 1974, Calley was a free man.
In the wake of the First World War, nations began to prohibit certain methods and ways of conducting warfare through treaties and conventions. In 1948, the United Nations adopted a convention defining genocide as a crime under international law that must be prevented and punished.
However, these laws, conventions and protocols lack a regular system for their enforcement and for holding individual violators responsible. War crimes have been prosecuted internationally only through specifically convened mechanisms, such as the Nuremberg and Tokyo trials after World War II, and the international criminal tribunals for the former Yugoslavia and for Rwanda, which were created by the United Nations Security Council on an ad hoc basis and are still in place today (for more on the prosecution of former Serbia leader Slobodan Milosevic, go here). As indicated by the United States' investigation and prosecution of William Calley, there are systems for prosecuting alleged war criminals within the United States itself, though such systems were much criticized at the time.
With the passing of the Rome Statute on the Internal Criminal Court on July 17, 1998, 160 nations decided to establish a permanent court where individuals "without any distinction based on official capacity" could be prosecuted for the following four broad crimes:
- Genocide, defined as certain acts "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group."
- Crimes against humanity, defined as acts such as murder, enslavement, and rape when "committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack."
- War crimes, defined as "grave breaches" of the Geneva Conventions of 1949 or of international norms "as part of a plan or policy or as part of a large-scale commission of such crimes. The Geneva Convention of 1949 prohibited acts such as torture and certain treatments of prisoners of war. International norms are defined to bar such acts as intentional attacks on civilians, intentional attacks made "in the knowledge that such attack will cause incidental loss of life or injury to civilians," "declaring that no quarter will be given," deliberately causing starvation of civilians, and using certain kinds of weapons.
- Aggression, which went undefined as of July 1998 and is to be defined later.
As defined by the Statute, the International Criminal Court (ICC) would have jurisdiction over individuals and crimes only in those states that have ratified the Statute via their legislatures (see Article 12 and 13) , and only if the relevant state has been found to be unwilling or unable to exercise jurisdiction itself and if the alleged crimes are of "sufficient gravity" (see Article 17). The ICC would also only have jurisdiction over crimes committed after the relevant state ratified the Statute. Specific elements of the crimes, such as the level of intent required for liability, are to be decided later (see Article 9).
The ICC Statute would provide several political and administrative checks. The ICC's prosecutor would be able to initiate investigations, but could commence cases only with approval by a pre-trial chamber of judges. Investigations or prosecutions could also be delayed for a year if the Security Council passed such a resolution.
The Statute was approved in a vote by 120 nations and opposed by seven states (including the United States, China, and Israel), with 21 abstentions. The United States said that its principal objection was over the proposed court's jurisdiction and its application to individuals. China said that there should be more checks on prosecutorial initiative. Israel opposed a provision including the transfer of populations into occupied territory as a war crime, Article 8(2)(b)(viii).
But the court is still far from a reality; the Statute does not go into force and the court not established until 60 nations ratify the Statute; as of November 2001, 139 nations had indicated their intention to ratify but only 46 nations had done so. The United States signed the Statute on December 31, 2000, thus indicating its intention to ratify but is not likely to do so, having often expressed concerns over subjecting U.S. citizens and officials to the jurisdiction of an international court.
But because jurisdiction is limited only to those cases in which a defendant had not been prosecuted by his own country's courts, or when such prosecutions were a sham (see Article 20: Ne bis in idem), the ICC can be seen mostly as a device to encourage states to prosecute their own and thus avoid ICC involvement. For example, had the ICC been in existence in 1968 and had the United States been a member, Calley probably would have been immune from ICC prosecution because he had been prosecuted and convicted in the United States. Other participants, however, would probably be subject to investigation and prosecution by the ICC, which would probably have encouraged further United States action.
Sources: The United Nations maintains a website for the International Criminal Court, available here; the Rome Statute of the International Criminal Court can be found there in various languages. Adam Roberts and Richard Guelff, Documents on the Laws of War (Oxford University Press, Third Edition, 2000). Michael Walzer, Just and Unjust Wars (Basic Books, 1977). Michael Bilton and Kevin Sim, Four Hours in My Lai (Viking Penguin, 1992).
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