The Magazine

The International Kangaroo Court

Get ready for the International Criminal Court to go after Israelis and Americans.

Apr 29, 2002, Vol. 7, No. 32 • By JEREMY RABKIN
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IN THE MIDDLE EAST, reality intrudes rather quickly. The dreams of diplomats are regularly blown to pieces by bombings and bullets. Elsewhere, reality sometimes takes longer to penetrate. This is especially so in the European Union, which has now displaced U.N. headquarters as the global center of political fantasy.

Puffed with their own moral authority, the Europeans have now corralled enough confused or calculating client states to reach the required 60 ratifications of the Rome Statute for the International Criminal Court. The court will open for business in July.

As a tool of law enforcement, the ICC is absurd. If a country wants to punish its own war criminals, it can do so. If it wants to protect them now, it still can--because the ICC has no way of enforcing its subpoenas. Will it do any good for the ICC to indict Osama bin Laden or Saddam Hussein? They are a bit beyond the power of European public opinion, even if it were running strongly against them (which it isn't).

The main point of the permanent criminal tribunal is to establish a platform for political spectacle. From the Euro perspective, it has two advantages over the Security Council. First, the ICC is not subject to a U.S. veto. Second, action by the ICC requires no direct involvement by European governments. Ostensibly, all decisions will be made by an independent prosecutor.

But the prosecutor will be based in Europe (at The Hague, in the Netherlands). The prosecutor will be financed by European states and given credibility and prestige by the approving comments of European leaders. So guess who the prosecutor will put in his sights as he tries to prove his value to his European sponsors?

Put it this way. Suppose a public gallows had been erected in a prominent place in a German town in 1941. Or suppose a gallows had been erected in a town square by the Nazi collaborationist governments of that era in France, Belgium, or Italy. Who do you think they would have chosen to hang?

Of course, that was long ago. Today, when synagogues are being burned in Europe, government leaders insist such events have nothing to do with government policy. But they also say the way to calm angry passions in Europe is to find a "solution" to the Israeli-Palestinian dispute, thereby endorsing the premise that Jews are, after all, somewhat to blame for violence against them. Germany was, in fact, the first to impose sanctions on Israel, followed quickly by France. The European Parliament then voted, by a substantial margin, to impose wider economic sanctions.

We don't need to rest on speculation about where the trend is heading. There has already been a dry run. Embarrassed at pulling their own troops from Rwanda in 1994, leaving 800,000 Tutsis to be slaughtered, the Belgians gave their courts "universal jurisdiction" to try any perpetrator, anywhere, of a "crime against humanity." The first foreign leader to be subject to this process (and so far the only one) is Ariel Sharon--because, in 1982, he allowed 800 refugees to be killed by Christian militias when he should have known this would happen.

Not one government in Europe has protested this attempted prosecution. Not one government in Europe has pointed out how untimely it might seem at a moment when Europeans are offering themselves as diplomatic "partners" in negotiating a Mideast peace.

Why is there so much hostility to Israel among European leaders? Leftist fashion plays some role, as do geopolitical strategies. But the hostility to Israel is so visceral that it must have deeper roots. At bottom, I think, Euro leaders resent Israel because it is everything the European Union is not.

Israel is a democracy. The European Union would never allow anyone as crude as Ariel Sharon to be elected to a top position, because no official with any authority in the EU is actually elected by European voters. The so-called Parliament of Europe is a place for summoning moral authority with nonbinding resolutions of impotent fury (like the threatened economic sanctions against Israel).

Then, too, Israel is a nation that is organized to defend itself and has shown the will to do so. Euroland is organized to project moral authority, and people who rely on its military protection--like the hapless refugees of Srebrenica or the Tutsis of Rwanda--have a way of ending up massacred. Still, Europeans wonder why Israel thinks it's so special that it has to insist on defending itself with its own troops. It should accept a force of "international peacekeepers," the Europeans say. Haven't these Euro forces done well in the past?

Finally, Israel is a nation with a strong sense of national identity, preserved by the historical memory of its people. In Germany--rather, in the largest member state of the European Union--history is something that began very recently, which is why that country is regarded so warmly by all its neighbors. Why do Israelis keep bringing up what Arafat did or didn't do way back in the past--before he renounced terrorism, or before he did so most recently?

Israel won't be the only target for Euro resentment, though. The United States is also a democracy, also a nation organized to defend itself and willing to do so, also a nation with a strong sense of its own national history and identity. And the United States also very much annoys Europeans. Europeans were in a frenzy of moral outrage when it became known that the United States was actually detaining al Qaeda prisoners at Guantanamo without according them all the privileges of POW status. And French prosecutors want to question Henry Kissinger in connection with possible war crimes 30 years ago.

Now American planners are thinking about war against Iraq, perhaps as soon as next fall. Will American military strikes involve "excessive" force, and so constitute war crimes? Will the resort to war itself be a criminal act of "aggression"? The independent ICC prosecutor will be on duty by then to tell us.

We can't now say for sure what will happen at The Hague. For example, we can't know for sure whether the first indictments of Israelis will come down in July or August. We can't know whether Americans will be indicted as early as September or only in November. But we know the court will be a major disappointment to its sponsors if it has not produced some resounding indictments by Christmas.

Is the United States prepared for this? Do we have a policy? Will Secretary Powell get Kofi Annan to stand in as a character witness for his good intentions when Powell is hauled before the prosecutor for questioning? Might it be worthwhile to think about this before it happens so we have some serious plans ready? Might it even be advantageous to announce our position in advance, before it gets tangled up in disputed facts about what our first indicted officer actually did or didn't do? Might we want to say something before Secretary Powell has to respond, impromptu, when the first Israeli is indicted?

So far the Bush White House has not even figured out whether to register our disapproval by withdrawing Bill Clinton's signature on the Rome treaty. Probably it's too late to tell the Euros that if they are not with us, they are against us. But perhaps we could tell them that if they indict one of our nationals, then we really will know they are against us.

Then we need to make clear that we'll take the same hostile view of any state or postmodern "union" of states that harbors the international prosecutors who indict our people. Perhaps we can mention that we regard such indictments as tantamount to unprovoked aggression. We might even tell the Euros that we wouldn't blame other democratic nations with war-making ability for defending themselves in the same way.

But we really must say something, and very soon.

Jeremy Rabkin teaches international law at Cornell University.