ICC may try US troops in Afghanistan?

Daniel Schwammenthal:

Secretary of State Hillary Clinton expressed "great regret" in August that the U.S. is not a signatory to the International Criminal Court (ICC). This has fueled speculation that the Obama administration may reverse another Bush policy and sign up for what could lead to the trial of Americans for war crimes in The Hague.

The ICC's chief prosecutor, though, has no intention of waiting for Washington to submit to the court's authority. Luis Moreno Ocampo says he already has jurisdiction—at least with respect to Afghanistan.

Because Kabul in 2003 ratified the Rome Statute—the ICC's founding treaty—all soldiers on Afghan territory, even those from nontreaty countries, fall under the ICC's oversight, Mr. Ocampo told me. And the chief prosecutor says he is already conducting a "preliminary examination" into whether NATO troops, including American soldiers, fighting the Taliban may have to be put in the dock.

"We have to check if crimes against humanity, war crimes or genocide have been committed in Afghanistan," Mr. Ocampo told me. "There are serious allegations against the Taliban and al Qaeda and serious allegations about warlords, even against some who are connected with members of the government." Taking up his inquiry of Allied soldiers, he added, "there are different reports about problems with bombings and there are also allegations about torture."

It was clear who the targets of these particular inquiries are but the chief prosecutor shied away from spelling it out.

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I think there is a problem with the prosecutors theory of jurisdiction. The Bush administration was very aggressive in negotiating agreements with host countries which specifically excluded US forces from any jurisdiction of the ICC.