One Down, One to Go
Good riddance to Kyoto; now kill the ICC.

Mr. Gaffney is president of the Center for Security Policy
March 30, 2001 12:20 p.m.

his week, President George W. Bush courageously defied the environmental radicals yet again by announcing that the United States was not going to be a party to the Kyoto Protocol on Global Warming. This step not only had important economic implications; it also signaled a notable contribution to national security.

Now having established that the nation can "unsign" treaties, Mr. Bush has created a precedent that should be urgently applied to another defective accord that also poses a serious problem for America's armed forces: the Treaty of Rome, which established the International Criminal Court (ICC).

Although the national security case against Kyoto has gotten scant attention, it is a powerful further justification for Mr. Bush's action.

Interestingly, one of the best arguments against the Kyoto Protocol was actually advanced in September 1997 (i.e., before the agreement was finalized) by, of all people, the Clinton administration's resident "green weenie" in the Pentagon — then-Deputy Under Secretary of Defense for Environmental Security, Sherri Goodman.

In a memo circulated to DoD's senior leadership, Ms. Goodman warned that: "Any restriction on allowable carbon dioxide emissions for [tactical and strategic] systems will affect DoD military operations and readiness."

Accordingly, Secretary Goodman attached to her memorandum a proposed "national security waiver" to the Kyoto Protocol, saying that this waiver should apply to "military tactical and strategic systems used in training to support readiness or in support of national security, humanitarian activities, peace-keeping, peace enforcement and United Nation's actions."

Such a waiver would have gone a long way toward insulating the American armed forces from the effects of a mandatory greenhouse gas-reduction scheme like that subsequently agreed to at Kyoto in December 1997. Unfortunately, although the Defense Department had been assured that such a blanket exemption would be forthcoming, its adoption proved during the negotiating endgame to be inconvenient for Vice President Al Gore and his National Security Advisor Leon Fuerth, who directed the U.S. team to accept something quite different. When the negotiations were over, the language adopted in the Protocol read as follows: "The Conference of the Parties…decides that emissions resulting from multilateral operations pursuant to the United Nations Charter shall not be included in national totals, but reported separately. Emissions related to other operations shall be included in the national emissions totals of one or more parties involved."

The Clinton administration subsequently asserted that this formulation protects priority Defense concerns as well as all multilateral, peacekeeping, and humanitarian operations — to include, for example, those that might not actually be authorized by the United Nations but simply be "consistent with" the UN Charter. In fact, the treaty's text and its negotiating history clearly contradict suggestions by the Clinton administration that the military's operations and activities were fully protected. The result would likely have been adverse, and potentially acute, with deleterious implications for the forces' readiness, overseas presence, procurement, and combat capability.

It is even conceivable that the nation's very ability to mount combat operations could have been affected by the Kyoto Protocol's emissions-trading arrangements governing greenhouse gasses. For instance, the United States might have been put in the absurd position of being unable to wage war without getting emission chits from prospective enemies and/or their non-aligned friends! At the very least, the new one-world mega-bureaucracy that would have been required to facilitate, monitor, and regulate such a trading regime would have turned into an enormous impediment to national security, as well as a grievous infringement on U.S. sovereignty.

These implications might have been worse had the Russians been able to realize the windfall from this emissions-trading scheme that might have, by some estimates, been worth $40 billion. The wildest dreams of medieval alchemists could not imagine such a magical transformation; the most fatuous ideological ruminations of Marx and Engels could scarcely have comprehended this sort of vast, undeserved redistribution of wealth. And, given past experience, it could only be expected that a substantial proportion — if not the lion's share — of the proceeds from sales of Russia's emissions credits to Western polluting nations would have gone to resuscitating the old Soviet military-industrial complex.

Now that President Bush has spared the nation the negative repercussions of the Kyoto Protocol, he should now "unsign" the International Criminal Court treaty. As with the global-warming pact, unless and until the United States government formally serves notice that it is not going to proceed with ratification of the ICC treaty, the nation will be bound to observe the provisions and obligations of an accord that even President Clinton acknowledged had "serious flaws."

That prospect is unacceptable in the extreme, both for practical reasons that have prompted vehement opposition to the ICC from the U.S. military and for the Treaty of Rome's larger implications for American sovereignty and constitutionally defined jurisprudence. These include:

1) In the absence of a clear UN Security Council veto over war-crimes prosecutions, American troops and civilian leaders could be subjected to politically motivated trials without the protections built into our system of jurisprudence that are derived from the Constitution and, in the case of the armed forces, enshrined in the Uniform Code of Military Justice (UCMJ).

2) Without an agreed definition in the Treaty of Rome of the crime of "aggression," U.S. political and/or military leaders could be arrested and tried in the future in connection with combat operations simply because others do not approve of those operations. And:

3) By dint of their unique global responsibilities and deployments, America's armed forces have concerns about being subjected to extra-national systems of justice that simply do not apply to other countries' militaries. It is essential to the maintenance of good order and discipline that the UCMJ be preserved as the preeminent code of conduct for U.S. service personnel.

If President Bush now acts formally to unburden the United States from both the depredations upon national security and sovereignty, as well as the other dangers of the Kyoto Protocol and the Treaty of Rome, he will be doing one thing more: He will be serving notice on the international community that his administration will be an American one — not a government that subscribes, as its predecessor did, to what some have called the "post-American" philosophy which has systematically subordinated national interests and sovereignty to "aggressive multilateralism" and world governance.