Anyone home at the State Department?
Dec 4, 2006, Vol. 12, No. 12 • By JEREMY RABKIN
One need not, of course, see things in quite these terms--especially if one indulges the German penchant for abstraction. One might argue instead, as legal commentators often do, that the new Germany is committed to the rule of law, founded on universal values, so the new Germany must also be committed to international law with universal reach. Accordingly, Germany was bound, by its commitment to universal values, to insist that the new International Criminal Court must apply to all nations. And if the ICC cannot act, Germany's commitment to universal values requires it to embrace a universal jurisdiction to see that international crimes are properly punished.
But most abuses won't be punished. After several years in operation, the ICC has so far started only one prosecution (of a warlord from Uganda). Germany cannot address all the remaining crimes in the world. In fact, it has shown no serious interest in pursuing wrongdoers around the world. It has so far launched prosecutions only in relation to atrocities in the Balkan wars of the 1990s (and then in cases where either the victims or the perpetrators ended up in Germany). Does it make sense to focus on minor abuses in democratic states when the world fails to confront entire regimes founded on terror and murder? Yet Germany's Code of Crimes Against International Law, like the ICC statute itself, does not distinguish the most terrible atrocities from lesser offenses, nor does it distinguish democracies from other states.
In effect, Germany's code of international crimes conflates imperfections in reasonably decent countries with the persistent evils that define the world's worst tyrannies. Which side does Germany mean to be on? The implication of its universal jurisdiction statute is that it is simply committed to universal law--that is, it is not on any side. Which is, come to think of it, pretty much where Germany has been since 9/11.
When you point this out to earnest Germans, you are quickly told that Germany has repudiated the nasty doctrines of the Nazi legal theorist Carl Schmitt, who taught that to be "political" one must heed, above all, the difference between "friends and enemies."
Okay, let's agree that Schmitt was not nice. Is there no alternative between Schmitt's brutal "decisionism," on one side, and a Kantian devotion to universal norms, without regard to context or consequence, on the other? For too many Germans, the answer is no. A sense of balance, of proportion, of prudent moderation, has not been a hallmark of German political culture.
Classical treatises on international law held that no nation should set itself up as judge of another except under the most serious provocation--the sort of provocation that might justify a military response. That's still a good rule, if you want to be universal. But if you want to get down to cases, of all nations, Germany is among the very least suited to serve as judge of the world.
Apart from older disabilities, arising from those "historical reasons," today's Germany is so averse to military engagement that it cannot distinguish reasonable from excessive military tactics. It has refused to allow its own troops in Afghanistan to engage in combat operations, even with a German in nominal command of NATO forces there. Even after the Security Council urged all states to assist the new Iraqi government in restoring order in 2003, Germany's offer was so insultingly small--it would train Iraqi police but not in Iraq and not even in any neighboring country--that the Iraqis rejected it out of hand. Despite Germany's much larger population, Canada and Australia, even little Denmark, make much more of a military contribution to struggles against evil forces in the world today. Germany is no longer a fighting nation. Being a bystander to world conflict is no qualification, in itself, to be a world judge.
Yet the Bush administration now seems to think it would be enough for Germany to find some technical reason to dispense with the charges against Rumsfeld. If it does not protest openly and emphatically against Germany's claim to jurisdiction over American officials, however, the administration implies that there is nothing wrong with the claim in principle. Which means we remain open to the possibility that similar charges may be revived in the future, even for the same episodes. Germany's law allows no statute of limitations. And a prosecution, once it gets started, can cause lots of headaches, even if it does not reach a guilty verdict. (Ask Scooter Libby.)
The objection to letting Germany set itself up as judge of American officials is not technical. We ought to mention that we object to this sort of thing in principle. We might even call that objection universal. But we might also make clear that our objection to German trials is also special, or at least especially emphatic.
Sure, sure, there are more varieties of relationship than "friend" and "enemy." But we should not tolerate Germany's trying to engage in prosecutorial therapy at American expense. Secretary of State Condoleezza Rice should make the point very clear. Germany can continue to call itself an American ally or it can persist in setting itself up as our judge. It can't do both.
Jeremy Rabkin teaches international law at Cornell and is author, most recently, of Law without Nations? Why Constitutional Government Requires Sovereign States (Princeton).