THE EUROPEAN UNION has just warned any country hoping to join the E.U. that it had better not make any arrangements with the United States promising not to extradite Americans for trial at the new International Criminal Court in The Hague.
The ICC is Europe's pet project for bringing justice and truth to the world. Its origin is the experiment in war crimes trials for Rwanda and the former Yugoslavia, two places where the Europeans stood firmly in repose while the massacres raged. (They raised not a finger against Serbia until the United States entered the fray and carried the fight.)
Europe now wants to generalize this soothing balm of bringing bad guys to court post facto. Hence the invention of a permanent International Criminal Court. Prosecutors in The Hague can now pursue soldiers, commanders, or political figures from anywhere in the world for whatever "crime against humanity" they fancy.
This presents a real problem for the United States. Americans do not dislike courts. We respect law. If anything, we are the most over-lawyered, judge-driven democracy in the West. (We are the only Western democracy, for example, to have legalized abortion not through popular or parliamentary vote, but by court fiat.) Nonetheless, we hold to the quaint idea that in a democratic system, prosecutors must be answerable to democratically elected leaders. The ICC has nothing like our system of checks and balances and review. Once the ICC judges and the prosecutors and the lawyers get the machinery going, they essentially have carte blanche.
We got
a taste of runaway prosecution four years ago when a Spanish judge nabbed Augusto Pinochet on a medical visit to England and had the former Chilean dictator detained for months on human rights charges. Fidel Castro happened to have been in Portugal at precisely the same time. He was not arrested. Surprise! It would not have occurred to the Spanish judge to charge him for the blood on his hands. That is not how European human rights politics works. The prosecutions are selective. And the prosecutions are political. Tomorrow, some grandstanding prosecutor will try to cuff Henry Kissinger for Vietnam, George Bush Sr. for the Gulf War, or maybe even Gen. Tommy Franks for the conduct of the Afghan war.
But beyond the hypocrisy is the issue of responsibility. We have a legal system in the United States for punishing crimes committed by Americans. These laws apply to crimes committed by Americans abroad, even in military uniform. Our code of military conduct is particularly strict. We don't need European prosecutors who answer to no one running around the world putting American soldiers in jail and forcing them to defend themselves on whatever charge the human rights activists of the day find convenient.
That is why last month we had a big fight with the Europeans at the U.N. We said we would not continue to expend money and personnel on peacekeeping if American soldiers were going to be subject to trial before the ICC. We threatened to terminate the U.N. peacekeeping mission in Bosnia altogether unless Americans were granted an exemption. The Europeans refused. The Bush administration decided that the eve of an Iraq war was not the best time to go to the mat on this one. So it chose to temporize and punt. It accepted a one-year exemption.
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