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
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

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.