First, Attempts to Over-Limit Military Action Sacrifice Deterrence

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FRAMEWORK: UTIL [1/2]

The value is justice. My criterion is freedom of military action. While no military should be completely insulated, a strict interpretation of engagement rules would cost lives. Also, political posturing that results in military self-restraint has the same impact of imposed restraint.

First, attempts to over-limit military action sacrifice deterrence.

MAJOR MICHAEL L. SMIDT. Military Law Review. March, 2001. 167 Mil. L. Rev. 156 ARTICLE: The International Criminal Court: An Effective Means of Deterrence?

It is better to respond to potential acts of aggression and massive human rights atrocities with a "systematic, global preventative regime," n68 than to create an after-the-fact formal enforcement mechanism. This is true for both major international armed conflicts and low-level internal struggles with international implications. "Credible military intervention by forces overwhelmingly more powerful than the combatant parties (like NATO's bombardment of Serb artillery positions in 1994 and subsequent occupation of Bosnia) has historically been the means to still low-level conflicts." n69 In recognition of this principle, President Clinton recently [*175] apologized for the United States' lack of an aggressive and early response in Rwanda. n70 Deterrence preserved peace during several historical events, or nonevents as it were. For example, the fact that the Warsaw Pact and NATO never fought World War III can be directly attributed to the power of deterrence. According to former Secretary of Defense, Casper Weinberger: What has deterrence done? Again I must stress that it has worked and is working today. There has been 37 years of Peace in Europe. Despite the threat of the Soviet Army; despite the threat of the Soviet nuclear weapons, Western Europe has prospered. Its political freedoms have flourished, and its social institutions have grown stronger. Indeed, there has not been an equal period of uninterrupted peace on the European continent since the Roman Empire fell. At the risk of stating the obvious, the United States and the rest of the world have also avoided the scourge of nuclear fire. Deterrence, this is and remains our best immediate hope of keeping peace. n71 Even some non-governmental organizations established to reduce the threat of war recognize the ultimate value of deterrence and, as a last resort, the use of force. The threat of use of forceful measures might seem at odds with the commission's focus on prevention of deadly conflict. But situations will arise where diplomatic responses, even where supplemented by strong economic measures, are insufficient to prevent outbreak or recurrence of major violence. The question is when, where, and how should individual nations and global and regional organizations be willing to apply forceful measures to curb incipient violence and prevent potentially much greater destruction of life and property. n72 [*176] Recently, a deployment of peacekeepers to Macedonia may have prevented the conflict in the Former Yugoslavia from spilling over into that country as well. n73 Preventive military deployments, therefore, are also a form of preventative diplomacy. n74 The mere presence of a "thin blue line" appears to have stabilized Macedonia and protected the country from neighboring threats . n75 Both the U.N. vision and the Special Forces motto imply that tyrants must be thwarted. The judicial approach of the U.N. provides that, through aggressive justice, potential criminals may be deterred from committing acts of aggression or massive human rights violations if they realize they cannot act with impunity. While the military approach would agree that oppressors should not be able to act without consequences, it would add that many tyrants can only be controlled with a credible threat of force. In reality, both the law enforcement and the military responses add to the concept of system-wide deterrence. However, each modality plays a distinct role, and neither should be permitted to negatively impact the other. This article argues that the present theory, which assumes that the answers for world peace derive primarily from judicial sources [are] is being overemphasized to the detriment of the potential ability, and occasional requirement, to use military force. First, over-reliance on justice ignores the obvious fact that potential victims are best served if they are not allowed to become victims in the first place. Courts may be effective in handling situations after the fact, but until they possess the deterrent capabilities needed to control rogue regimes, they should not be permitted to displace or weaken the military option. Second, if a court lacks the ability to actually enforce its pronouncements, rogue regimes will simply ignore the court and will not be deterred. The military remains the most credible and effective form of deterrence in the international arsenal of weapons to prevent war and massive human rights abuses. Within the international military community, the U.S. armed forces are better prepared than any other entity to deter aggressive regimes and their leaders . Therefore, any move by the international community to sacrifice on the alter of justice the deterrent capability of the armed forces of the United States and its allies cannot be accepted. However well- intentioned advocates for the International Criminal Court (ICC) may be, the proposed court represents a significant threat to the national security of the United States and its allies as currently formulated. [*158] There is certainly room, and arguably a need, for a permanent international criminal court. However, the provisions of the ICC n5 simply place too many significant risks on nations and their armed forces that are equally determined to rid the world of oppression. Political prosecutions before the ICC are so probable that the forces of good may be deterred from taking on the forces of evil.

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The increase in vulnerability for the military would result in more risk-averse engagement: demonstrating that new rules of war have turned the United States into a paper tiger.

FRAMEWORK: UTIL [2/2]

Second, conflict duration will increase.

a.) Strict engagement rules allow the enemy to manipulate guidelines, making enemy resistance more effective. The evolution of counterinsurgent warfare against the United States has occurred because of an asymmetric weakness is found in US policy: those weaknesses exist because of rules imposed that ignore ground conditions.

b.) Imposition of strict rules kills deterrence conflict because US power is weakened through a demonstration of lack of military will. Once military power is limited and duration of conflict increases, war- weariness may set in and demands for US withdrawal will gain force.

c.) Wars become longer as stop-gaps to implement review are imposed. As with the Al-Firdos bunker scandal in Iraq, pressure to change targeting strategy requires top-level policy changes as well as different ground command strategies: these alterations take a significant portion of time.

d.) Wars become longer as the military is forced to use suboptimal targeting. Off limits targets with high value decrease the ability to coerce the enemy. This may mean an additional threat to U.S. troops if the targeting tradeoff is , for example, a loss to air power strategy.

Third, the military is disabled from making utilitarian calculations if there are strict limits. As a result, it is restrained from taking actions of military necessity. Varying levels of conflict-intensity require a different approaches: low-level conflict requires different judgments than massive World War. The lack of willingness to take necessary action will result in an increased loss in life because actions that may be necessary to save victims have been taken off the table

POLITICAL LINK [1/6]

Contention One: The ICC will undermine the United States’ freedom of military action through political pressure.

1.) The lack of freedom from foreign investigation is will scare the military.

Holt and Dallas in 06 (Victoria and Elisabeth, Henry L Stimson Center, “On Trial: The US Military and the International Criminal Court” Report No 55, March 2006)

One career officer at Stimson’s workshop argued that he thought that his colleagues in the field were already worried about the Court. they have no “guarantee” that the Court will not investigate and prosecute them for doing their jobs, he argued. This launched a discussion, and military lawyers pointed out that, actually, if the soldier is doing his job, then nothing has changed. By following the chain of command and abiding by the rules of engagement (ROE), the soldier’s actions on the ground are covered under the Uniform Code of Military Justice. Military personnel should fear investigation and prosecution under the UCMJ should they commit a crime while in the line of duty, but face little risk of any of their actions being second-guessed by the Court. Furthermore, if the Court was to ever step in, participants argued that the Court would be going after senior leadership personnel, not sergeants.101 The problem, he persisted, is that “perception is reality.” Confusion about the Court among rank and file military personnel is real, and is not being assuaged on the ground. Another participant pointed out that a vague fear of the Court is the bottom line for many in the military, and until they understand how it functions both operationally and legally, they will continue to feel like their actions could be second-guessed. A consistent concern raised was that the Court would “look over the shoulder of a solider” and judge his or her actions during the heat of battle. One military police officer cast it as having a “second bite of the apple,” where the Court could judge US actions, even after appropriate authorities had conducted an investigation domestically. This concern drove nearly all questions about the Court and its operations at some level. It also led to questions about the Court’s accountability, its impact on future US missions, and its potential for being abused by America’s critics and enemies. Some military officers, including a few who recently served in leadership or policy positions, equated the ICC with European courts claiming universal jurisdiction, such as those in Belgium. They worried about being apprehended while traveling abroad by an institution that mirrors existing European national courts. One retired Colonel wondered if he could be “grabbed” in Spain for his work promoting US policies that differed with European views on landmines.89 More than one officer familiar with the Court suggested that “everything changed” in 1998, when the ICTY considered cases about the NATO air strikes conducted during the Kosovo War. While the Court dismissed the charges, it served as a “wake-up call” to what the US could face with the ICC.

2.) Moreno-Ocampo is a showboating prosecutor who has a personal incentive to take cases with shock value, making him an unknown quantity to US officials.

Julie Flint and Alex de Waal Spring 2009 Case Closed: A Prosecutor Without Borders World Affairs Julie Flint is a journalist and researcher. Alex de Waal is a researcher, writer, and activist on African issues. They are co-authors of Darfur: A New History of a Long War. http://www.worldaffairsjournal.org/2009%20-%20Spring/full-DeWaalFlint.html

Moreno Ocampo’s greatest asset was an exemplary cadre of professional staff for whom working at the ICC was more than a career—it was a vocation. “I loved this job,” an early recruit to the OTP told us. “It was my life.” The Prosecutor had the opportunity to draw upon the accumulated expertise of existing international tribunals and some of the world’s finest lawyers and investigators. This asset was rapidly squandered. Increasingly, Moreno Ocampo’s staff found it difficult to agree with their own Prosecutor, whose penchant for publicity and extravagant claims rather than fine detail was the polar opposite of their own work ethic. As the pressures on him mounted, Moreno Ocampo, in the opinion of many of his colleagues, began to “cut corners.” They were incredulous when he announced publicly that he planned to intercept a plane on which Harun was scheduled to fly to Saudi Arabia for the Haj.9 If he really sought to arrest Harun, why advertise his own plan? The Prosecutor’s harshest critics accused him of grandstanding: he knew, they said, that if the cases he was building ever came to court, and proved to be flawed, it wouldn’t be on his watch. Some wondered if he was “making peace with the fact that he is never going to get these people arrested.” Others suggested he was taking a maximalist position, very publicly, as the only way of showing the impact of the crimes committed. As internal criticism grew louder, Moreno Ocampo listened less and took closer personal charge than ever. Many in the Investigations Division felt sidelined; in the Prosecutions Division, insufficiently consulted. A senior team member said the Prosecutor was “the most complicated and difficult” manager he had ever worked for, emotionally volatile and obsessed with micromanaging. Some tried to raise concerns, privately deploring the absence of “a culture in which objectivity and a critical review of the evidence with all its shades drives the institution.” A key member of the OTP left, saying privately that he was fearful of having to defend an indefensible position a few years down the line. A second followed, saying the Prosecutor ran the OTP like a medieval kingdom.

This will tip off the US that Ocampo will target them to establish a high profile case

3.) Article 44 stipulates that the Chief Prosecutor employ “gratis personnel”: members of referral NGOs that will assist in running the court.

Richard G. Wilkins (Prof. of Law, J. Reuben Clark School, Brigham Young University) Doing The Right Thing: The International Criminal Court And Social Engineering http://kennedy.byu.edu/partners/WFPC/wilkins.html

"Gratis personnel" are personnel paid for by third parties. But, while their salary is paid by a third party, such personnel are nevertheless performing the "work . . . of the organs of the Court." One can expect that many of these "gratis personnel" will be supplied by well-funded international NGOs who are hostile to religion and traditional values. An independent prosecutor's office free from any real governmental control is dangerous enough. An independent prosecutor's office staffed by NGOs with ideological axes to grind is positively frightening.

Granting ideological institutions access to ICC situation reports allows poltiicized individuals to determine, based on Rome Statute requirements, if there is a reasonable basis to proceed with investigation.

Fraudulent information may be brought to the court that unfairly implicates the United States.

Austin, W. Chadwick, and Antony Barone Kolenc. Who's afraid of the Big Bad Wolf? The International Criminal Court as a weapon of asymmetric warfare. Vanderbilt Journal of Transnational Law. 39.2 (March 2006): 291(55).

Adversaries of the United States could perpetrate this fraud on the ICC in two ways: (1) placing innocent civilians at high-priority targets to create heavy civilian casualties from U.S. attacks, and (2) committing war crimes while disguised as using troops in order to "frame" the United States, or both. Regarding the first possibility, consider again the Al Firdos bunker incident during the 1991 Persian Gulf War. (216) Out of malevolence or sheer stupidity, the Iraqis placed families of high-ranking military leaders in harms way in the upper floors of a bunker which was also a high-priority leadership target. (217) Its destruction--and accompanying civilian loss--resulted in both propaganda and legal opportunities. (218) In addition, modern adversaries are willing to use innocent civilians to raise the stakes on U.S. attacks. For instance, Libya "threatened to surround the reported site of an underground chemical plant with 'millions of Muslims' in order to ward off attacks." (219) Since modern terrorists have no regard for innocent human life, they would not hesitate to use this same tactic if an asymmetric gain could be achieved. Indeed, U.S. officials predict that future enemies will likely disperse "military assets into civilian areas in the hopes of causing collateral damage" that can be "trumpeted to the world media ... all in the hopes of dissuading attacks by compassionate Americans concerned for the fate of those who might be unintentionally killed." (220) Regarding the second possibility, the idea of "framing" the United States for war crimes will appeal to asymmetric adversaries, but only if they can achieve it successfully. This is no idle fear: during the 2003 invasion of Iraq, reports surfaced that U.S. military uniforms had been stolen; insurgents intended to use those uniforms to pose as U.S. military members and commit war atrocities. (221) These tactics have also been used in the past. Colombian kingpin rebels may have intimidated peasants to bring false claims against key military leaders. (222) Further, some believe Rwanda and Uganda used this tactic to garner world sympathy by feeding "the media and NGOs false stories on military operations and atrocities in Zaire." (223)

The Chief Prosecutor is obligated to investigate all claims unless there is “no reasonable basis to proceed” : an extremely low bar that permits frivolous legal action.

In other words, those who have both "information" and an anti-U.S. agenda will always have the ear of a prosecutor who is obliged under the law to consider all allegations. In February 2006, the Chief Prosecutor gave the world its first glimpse of a potentially controversial preliminary investigation stemming from the proprio motu power. Having received over 240 communications regarding the U.S.-led invasion of Iraq in 2003, the Chief Prosecutor posted a ten-page response explaining why his office had chosen not to initiate a formal investigation into the complaints. (135) As part of the preliminary investigation, the Chief Prosecutor contacted the "relevant States" to seek information from them, as well as seeking data from key NGOs. (136) While ultimately concluding that his office did not have jurisdiction with regard to "non-State Party" nationals (i.e., the United States), the Prosecutor did describe a thorough analytical process that his office conducted with regard to those nationals over which jurisdiction existed. (137) Although the Prosecutor found no evidence of genocide or the targeting of civilians--partly due to a lack of information--he did find a "reasonable basis" to believe willful killing and inhuman treatment of civilians had occurred. (138) The Prosecutor ultimately chose, however, not to initiate an investigation into these crimes due to "gravity" considerations under the Rome Statute, which seemed to require more victims than were present in this situation. (139) Further, unlike the broad discretion to dismiss claims brought under universal jurisdiction laws in countries such as Germany and Belgium, (140) the Chief Prosecutor does not have the luxury to ignore potential violations for political reasons. Instead, the Rome Statute provides an easily met criterion to trigger the Chief Prosecutor's obligation to initiate a formal investigation: he "shall ... initiate an investigation unless he or she determines that there is no reasonable basis to proceed under" the statute. (141) This text makes the initiation of investigations [is] the default position except where "no reasonable basis" exists--a low standard indeed. (142) The statute gives the Chief Prosecutor an "out" based on three factors. (143) The third and most interesting factor allows the Chief Prosecutor to refuse to initiate an investigation where it is "not in the interests of justice"--another standardless test . (144) But it is doubtful that "justice" would be served by a prosecutor who determines that trying a U.S. military commander would be bad diplomacy or politically risky. (145) The Chief Prosecutor is not a statesman but an independent entity sworn to bring violators of serious international crimes to justice. Information against Americans will not be ignored. The proprio motu structure sets up a system that can be manipulated by future asymmetric warriors to produce the type of judicial meddling that will help achieve their objectives. Is there any doubt that an enemy of the United States could fashion a "reasonable" argument about potential U.S. violations? Examples abound where adversaries have manipulated facts and images to present a compelling image of the U.S. war machine gone astray. (146) How is the Chief Prosecutor to determine whether or not a military commander's decision to strike a target such as a mosque--allegedly used by terrorists as a hideout--was a valid target? Is it sufficient to find a destroyed mosque that is admittedly a target of U.S. weaponry? Must there be some evidence of wrongdoing beyond this? Will the Prosecutor be required to conduct preliminary interviews with commanders and witnesses? If so, what effect will this type of judicial meddling have on the United States' ability to wage its war on terror? Supporters of the Court often cite procedural safeguards that would thwart the efforts of a politicized Chief Prosecutor, implying that U.S. concerns are "much ado about nothing." (147) For instance, in exercising the proprio motu investigation power, the Chief Prosecutor must submit all supporting data that a crime has been committed to a Pre-Trial Chamber of the Court. (148) This chamber, composed of three judges of the Court, (149) must decide by majority vote whether it will authorize the investigation by finding a "reasonable basis" to proceed. (150) This standard, however, is as low for the judges as it is for the Chief Prosecutor. Supporters also cite the requirement that the Chief Prosecutor and judges be of high moral character and possess integrity. (151) Yet these same qualities-- coupled with a view of international law that contradicts U.S. standards--could result in a bold and courageous ICC that reaches very different conclusions than U.S. courts. (152)

The ICC has a broad jurisdictional mandate which makes it ripe for abuse

A key difference between the ICC and other global courts is its broad mandate. For example, the ICTR and ICTY were created in response to events that had already occurred, which limited the[ir] jurisdiction of those courts to specified prior crimes. (112) In essence, the tribunals were an extension of the U.N. Security Council's Chapter VII powers, formed to maintain peace and security by delivering justice to particular regions. (113) Parties before the tribunals did not submit to their jurisdiction--it was imposed upon them. (114) Further, the United Nations created the tribunals with the benefit of hindsight, which allowed it to develop a narrow mandate for each court. (115) As a self-contained system with limited jurisdiction, neither tribunal could evolve into a Frankenstein-like creature that acted in ways its master did not intend. (116) The ICC, on the other hand, is a forward-looking, consent-based court (117) with few built-in restraints to keep its broad mandate in check. Unlike self-contained, finite tribunals, the ICC has broad future jurisdiction in the one hundred countries that have ratified the Rome Treaty (118) and yielded a portion of their sovereignty to the Court. With a bottomless pool of clients, the ICC is like a shop that is open for business but unsure which customer might walk through the door. (119) Moreover, the ICC does not suffer from the same limitations as other global courts. Foreign courts that rely on universal jurisdiction laws are limited by their lack of international support and political clout to enforce their decisions. (120) Similarly, even global courts such as the International Court of Justice (ICJ) have little enforcement power. (121) Domestic U.S. courts, on the other hand, possess the jurisdiction and power to carry out their decisions but view international law from a distinctly U.S. perspective--with the ultimate check of the U.S. Supreme Court to prevent anomalous results. (122) In the end, the ICC is an attractive tool for asymmetric "law-fare" because nations have empowered it with the legitimacy and jurisdiction to carry out its rulings. (123) Were the United States to ratify the Rome Statute, there would be no practical check on those decisions by U.S. judicial institutions. This makes the Court potentially dangerous.

POLITICAL IMPACT [1/2]

Submitting to the ICC will result in military commanders being more risk averse – which will impede the United States’ ability to fight the war on terror and will lead to more casualties

The primary aim of future asymmetric "law-fare" attacks will be to deter the United States from "doing good" and aggressively fighting its war on terror. (249) Terrorist groups such as Al-Qaeda would relish the ability to cow the United States into a defensive posture or one of complete international isolation. (250) If these groups can prevent U.S. attacks against them by creating risk-averse decisionmakers, they will have gone far in neutralizing their primary threat. Risk-averse behavior begins with the fear of taking risks and exposing oneself to danger. With regard to the ICC, United States policymakers are most concerned about the danger to U.S. civilian and military leadership posed by investigations or prosecutions. (251) While testifying in favor of the ASPA, U.S. Ambassador John Bolton stated: Now let us be clear here. Our main concern under the Rome Statute should not be that the prosecutor will indict the occasional American soldier who contrary to his or her training and doctrine allegedly commits a war crime. Our main concern should be for the President ... and other senior leaders responsible for our defense and foreign policy. They are the real potential targets of the ICC's politically unaccountable prosecutor. (252) The mere possibility of an ICC investigation could curtail U.S. military and peacekeeping activities. (253) Military and civilian leaders may adopt stricter interpretations of proportionality, reducing the speed, mass, and dominance that have characterized U.S. military operations. Considering the relatively subjective nature of wartime decisions, the United States could choose to operate a conservative war-fighting plan for fear it will need to defend its decisions to a civilian court composed of members who may have very different perspectives on the parameters of proportionality. (254) Some might argue these operational constraints would be a positive development; however, history has shown that piecemeal [operational constraint] efforts in warfare increase risks to all parties involved and are more harmful in the long run. (255) For instance, the slow buildup of NATO's air campaign in Kosovo may have contributed to the length of the war and resulting loss of life--an unintended consequence of proportionality. (256)Recent history provides examples of how asymmetric tactics can achieve a response from military and political leaders hoping to avoid negative media publicity. (257) During the 1991 Gulf War, the United States changed its targeting strategy after the Al Firdos bunker tragedy resulted in hundreds of civilian deaths. (258) After the massive civilian casualties, General Norman Schwarzkopf required all Baghdad targets to be personally approved by him; he also sharply limited attacks against other National Command Authorities. (259) Similar concerns led to military decisions during the December 1998 air strikes in Iraq, dubbed Operation Desert Fox. U.S. military commanders feared the media's use of images of the air strikes during the Muslim holy month of Ramadan and thus allowed only four days to strike key Iraqi targets; this mission was almost "undoable." (260) Moreover, when Belgium and other countries began to use universal jurisdiction laws, U.S. officials modified their diplomatic travel schedules to avoid those countries. (261) These examples reflect an underlying concern repeatedly raised by officials in the Clinton Administration: "The Rome Statute imposes a formal equality of law in the face of a radical inequality of exposure: [w]ith vastly larger military commitments than any other country, the United States is more likely to have soldiers deployed in conflicts that may give rise to war crimes charges." (262) This concern is well-founded: the Rome Statute expressly subjects military commanders and other "superiors" to criminal responsibility for crimes "committed by forces under his or her effective command and control." (263) It also holds soldiers criminally responsible for following "manifestly unlawful" orders, which include "orders to commit genocide or crimes against humanity" (264)--charges recently raised against the United States. (265) Human nature indicates that exposing military and political leaders to criminal liability will modify how they make decisions. While those who oppose war for any reason may applaud such a change, those who prey on the weak and divided would also rejoice, for they would have attained through legal processes that which they could not achieve on the battlefield.

Submitting to the ICC will result in the diversion of resources and the leaking of military secrets through the discovery process of criminal investigation

Even where U.S. policymakers and commanders do not become risk-averse, asymmetric exploitation of the ICC could betray secrets, (266) waste resources, and distract leadership. Osama bin Laden himself has advocated these methods to bankrupt the United States in its war on terror. (267) Diverting resources could have a significant impact on military operations: It is foreseeable that groups opposed to all use of military force could tie up military resources and man hours by making allegations of war crimes, no matter how frivolous. United States policy makers may find themselves before the court having to defend United States actions in the use of force against blatantly aggressive nations.(268) A major concern from an asymmetric warfare standpoint is that commanders in the field would be forced to thoroughly investigate every civilian death or wayward bomb to avoid potential ICC jurisdiction. Though such investigations are unlikely to comfort the victims of collateral damage, they will disrupt the mission and raise costs. The very structure of the ICC inexorably leads to this result. (269) In an effort to limit the Court's jurisdiction and placate objections by the United States, (270) diplomats incorporated the principle of complementarity into the treaty. Complementarity would prevent the ICC from taking jurisdiction over a case that has been, or is being, investigated by a State Party, leaving national jurisdictions with primacy in prosecutions. (271) While promising in theory, this principle leads to undesired results when combined with the Chief Prosecutor's proprio motu power. (272) Under the Rome Statute, the Chief Prosecutor is obliged to inform any State when a formal investigation into an alleged violation has been opened. (273) This "heads up" provides the State an opportunity to start its own investigation, triggering the protection of complementarity-- the Chief Prosecutor must defer to the State unless he is convinced the state is unwilling or unable to carry out an investigation or prosecution. (274) But pronouncements from the Chief Prosecutor have added to this obligation: the normal practice of his office is to inform the state in the "pre-investigation" phase (275) when he is "analyzing" information to determine whether to initiate an investigation: (276) [T]he Prosecutor will generally seek to alert the relevant State of the possibility of taking action itself very early in the process. For this reason, when the Office receives sufficiently detailed and credible information about alleged crimes, the Office will in general consult with and seek additional information from the States that would normally exercise jurisdiction, unless there is reason to believe that such consultations may prejudice the future conduct of an analysis or investigation or jeopardize the safety of persons. This notice will, in practice, force the state to conduct an investigation to avoid jurisdiction, even where it believes it has acted properly. (278) In the end, the Chief Prosecutor will exercise substantial political influence over States Parties simply by raising the specter of an investigation . Any state that fails to conduct an "independent" or "impartial" investigation of the allegations would foolishly risk the Court's meddling, even where the case is still in its pre-investigation phase. The very conduct of these state-led investigations could create risk-averse behavior and divert the attention of both leaders and subordinates from accomplishing the anti-terror mission. For instance, to conduct a thorough and timely inquiry, an investigation should begin close in time to the incident. Subordinates and commanders alike will need to be questioned. Classified intelligence will need to be examined. Command and control issues will need to be explored. Each day, this will consume time from the busy schedules of personnel up and down the chain of command. Because the ICC is most interested in complaints against high-level officials, the President, Secretary of Defense, and other public figures may need to be interviewed about their thoughts, actions, and motivations for command decisions and policies. Furthermore, even if the state undertakes an investigation and determines no wrongdoing occurred, it runs the risk the Chief Prosecutor may determine the state was unwilling or unable to genuinely carry out the investigation. (279) No standards are set forth in the Statute to define what "unwilling" means , (280) although it is likely that over time the Court will develop its own standards and precedents for making this evaluation. (281) Faced with the uncertainty of how a Chief Prosecutor will view a case, (282) then, it is easy to foresee the United States investigating far more issues than it would normally deem necessary. In short, there is potential for inefficiency and distraction, which would play well into the overall strategies of asymmetric warriors.

Subjecting the military to politicized oversight or the watch of international civilian judges will undermine the military.

Richard Kohn, Professor of History, University of North Carolina, Military Personnel Subcommittee Of The House Armed Services, FDCH POLITICAL TRANSCRIPTS, November 4, 1999

Civil-military relations are critical to national defense. If the armed forces diverge in attitude or understanding beyond what is expected of the military profession in a democratic society, have less contact, grow less interested in or knowledgeable about each other, the consequences could be significant. Each could lose confidence in the other. Recruiting could be damaged. Military effectiveness could be harmed. The resources devoted to national defense could decline below what is adequate. Civil-military cooperation could deteriorate, with impact on the ability of the United States to use military forces to maintain the peace or support American foreign policy.

PROPORTION LINK/IMPACT

The ICC has very limited jurisdiction over crimes against humanity and war crimes except in the case of proportionality concerns. Article 8(B)(4) of the Rome Statute allows for jurisdiction over crimes that are “clearly excessive in relation to their to the concrete and direct overall military advantage anticipated.” This requires a proportionality calculation but that is impossible.

Weapons of Indiscriminate Lethality. Global Media Forum. http://www.dw-gmf.de/conference_2009/1982.php By Noel Sharky

No clear objective means are given in any of the Laws of War for how to calculate what is proportionate [10]. The phrase "excessive in relation to the concrete and direct military advantage expected to be gained" is not a specification. How can such values be assigned and how can such calculations be made? What could the metric be for assigning value to killing an insurgent relative to the value of non-combatants?, particularly children who could not be accused of willingly contributing to insurgency activity? The military say that it is one of the most difficult decisions that a commander has to make ; but that acknowledgement does not answer the question of what metrics should be applied. It is left up to a military force to argue as to whether or not it has made a proportionate response as has been evidenced in the recent Israeli- Gaza conflict. Uncertainty needs to be a factor in any proportionality calculus. Is the intelligence correct and is there really a genuine target in the kill zone. The target value must be weighted by a probability of presence/absence. This is an impossible calculation unless the target is visually indentified at the onset of the attack. Even then errors can be made. The investigative journalist, Seymour Hersh, gives the example of a man in Afghanistan being mistaken for bin Laden by CIA Predator operators in 2002. A Hellfire was launched killing three people who were later reported to be three local men scavenging in the woods for scrap metal [11]. And this error was made using a robot plane with a human in the loop. There is also the problem of relying on informants. The reliability of the informant needs to be taken into account and so does the reliability of each link in the chain of information reaching the informant before being passed onto the commander/operator/pilot. There can be deliberate deception anywhere along the information chain as was revealed in investigations of Operation Phoenix - the US assignation programme - after the Vietnam War. It turned out that many of the thousands on the assignation list had been put there by South Vietnamese officials for personal reasons such as erasing gambling debts or resolving family quarrels [12]. It is also often practically impossible to calculate a value for the actual military advantage. This is not necessarily the same as the political advantage of creating a sense of military success by putting a face to the enemy to rally public support at home and to boost the morale of the troops. Obviously there are gross calculations that work in the extreme such as a military force carrying weapons sufficient to kill the population of a large city. Then it could be possible to balance the number of civilians killed against the number saved. Military advantage at best results in deterrence of the enemy from acting in a particular way, disruption of the social, political, economic, and/or military functions and destruction of the social, political, economic, and/or military functions [13]. Proportionality calculations should be based on the likely differences in military outcome if the military action killing innocents had not been taken [14]. Despite the impossibility of proportionality calculations, military commanders at war have a political mandate to make such decisions on an almost daily basis. Commanders have to weigh the circumstances before making a decision but ultimately it will be a subjective metric. Clearly the extremes of wiping out a whole city to eliminate even the highest value target, say Osama bin Laden, is out of the question. So there must be some subjective estimates about just how many innocent people equal the military value of the successful completion of a given mission.

Allowing review of proportionality by the ICC will chill U.S. military action.

Nash 2000 (William, Fellow at the Harvard JFK School of Government, The United States and the ICC, http://www.amacad.org/publications/icc9.aspx)

The concept of allowing a civilian court to evaluate what essentially may be professional military judgments runs contrary to the core of the U.S. military system- The idea that the laws of war, so clearly and diligently ingrained in U.S. military doctrine and training, might be reinterpreted by an outsider is worrisome.

Regardless of a chilling effect, any decisions made by the ICC on proportional attacks will have to be integrated into military manuals, limiting the discretion of generals.

AXIOLOGICAL TARGETTING IMPACT

This prevents axiological targeting and effects-based operations which is key to ending conflict, the example is the genocidal Milosevic.

MICHAEL N. SCHMITT . The Air Force Law Review 2008 62 A.F. L. Rev. 1 ARTICLE: ASYMMETRICAL WARFARE AND INTERNATIONAL HUMANITARIAN LAW

This is apparent in the proposal of operational concepts urge a broad interpretation of military objectives . For instance, when technological asymmetry allows one party to a conflict to attack with almost complete impunity, coercing the other into engaging in (or ceasing) particular conduct becomes theoretically impossible. The advantaged party simply bombs its opponent into compliance with its wishes. Operation Allied Force serves as a classic example of a "coercive" campaign, for the intent was never to defeat President Slobodan Milosevic's army. Rather, it was to compel a return to the bargaining table and end systematic and widespread mistreatment of the Kosovar Albanian population. n113In a coercion campaign, the defining question is what to strike to force the enemy leadership into making the decision you desire. n114 [*31] Effects-based operations are tailor-made for such campaigns because they mandate a hunt for those targets most likely to compel the decision maker. The problem vis-a-vis IHL is that military capability may not be sufficiently valued by the enemy leadership to force their hand by holding it at risk. In such cases, the logical remedy may be to strike something which is not military in nature. Recall Lieutenant General Michael Short's well-known comments as NATO air component commander for OAF: "I felt that on the first night the power should have gone off, and major bridges around Belgrade should have gone into the Danube, and the water should be cut off so the next morning the leading citizens of Belgrade would have got up and asked 'Why are we doing this?' and asked Milosevic the same question." n115 Short perceptively realized that weakening the Yugoslav military would not necessarily force Milosevic to accede to NATO demands. Rather, Milosevic feared losing the support of the population, and therefore his power base, far more. Thus, the logic of EBO, particularly when applied in a coercive campaign, will sometimes lead planners towards targeting non-military objectives.

The Rome Statute is too stringent in its application of the rules of war: in some circumstances it may be necessary to have both non-military objectives and target civilian objects. The severity of conflict should dictate this limit: the ICC however imposes an absolute prohibition.

DUAL USE IMPACT

Attacks on dual-use targets have unclear status in the Rome Statute. The Statute defines civilian objects as off limits for military action, but facilities do not fall into the distinction between civilian/military.

Ang Chun Li 2004. “What is the status of voluntary human shields?” http://www.wischik.com/marcus/essay/humanshields.html

The category of dual-use targets is problematic not least because the category is broad and disputed. Objects such as oil refineries, airports, and port facilities conceivably have both civilian and military value. The status of voluntary human shields protecting such installations is currently at best vague, and at worst completely undefined. The fact that the target is capable of both military and civilian use immediately imposes the familiar requirements of necessity and proportionality. If the shields are to be regarded as civilians, then certain prohibitions swing into operation. First, the use of air-launched incendiary weapons becomes severely curtailed and subject to a very high threshold military necessity analysis. Secondly, if it were possible to prove that the commanders ordering the attacks were deliberately targeting the civilians rather than the installation, they would be guilty of a grave breach of IHL.

“LACK OF A CLEAR DEFINITION”

The lack of a clear definition in the Rome Statute of many crimes means that the US will be subject to the evolving jurisdiction of the ICC through development of international case law. This means military action will be subject to the continual whims of an international court, and evolving laws that are stringent must be applied to the US military.

Personal costs will outweigh military objectives because the consequences for indicted generals are more immediate and long lasting. An accumulation of this attitude throughout the military will kill resolve to act.

The establishment of diplomatic relations between the ICC and the US means that we may in some instances have to consult the court prior to military action, which means that our military would be functionally under the control of adhoc guidelines created by a non-military institution.

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