One of Ours

...even though the United States is not part of the ICC [International Criminal Court] and Iraq is not a member, we might still find our troops wrangled into ICC jurisdiction by a provision that lets non-ICC member states refer cases to it anyway. Once the Iraqi government takes sovereignty on June 30, it might decide to do just that, especially if the Iraqi people demand international justice for the crimes at Abu Ghraib. The United States will surely lobby the future Iraqi government not to refer charges to the ICC. But once we hand the reins of sovereignty to the Iraqi government, this decision will be theirs to make.

So, the United States must now make a difficult choice: It can continue to prosecute a fraction of those involved, with the risk of an ugly ICC prosecution in the future. Or, take a more aggressive stance toward the abuses at Abu Ghraib, in order to preempt ICC jurisdiction. "More aggressive" here means that the United States should do three things immediately: We must prosecute the military and civilian leadership involved, in addition to the junior soldiers who allegedly carried out the abuses at Abu Ghraib; second, we should appoint an independent commission (not just a Pentagon-sponsored panel, as suggested by Defense Secretary Donald Rumsfeld to Congress) to investigate these abuses and make recommendations on how to prevent these staggering breaches in military discipline from recurring in the future; finally, we should evaluate our stance toward prisoners of war and enemy combatants generally, with particular attention to how cases like Guantanamo and Abu Ghraib are viewed around the world, and how this stance may create ambiguity in the field for soldiers charged with physically dealing with prisoners.

Even if the United States acts only to keep its own soldiers off the ICC docket, the interests of justice will be served...