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.
In anticipation of the expiration of the year, however, the administration has gone to more friendly countries seeking bilateral agreements not to extradite Americans to the ICC. On August 1, Romania was the first to sign up. (Israel quickly followed suit.) That piqued the pique-prone Europeans. First, the European Union expressed "regret" over Romania's action. Then, on August 12, European Commission president Romano Prodi issued a warning to "other candidate countries which have also been approached by the United States" not to "make any more moves to agree to sign such an accord." The "candidate countries" being mostly poorer Eastern European countries whose economic future lies with acceptance into the tariff-free club of rich West Europeans, the warning carries weight.
The ironies here are stark. The East Europeans are poor and the West Europeans are rich precisely because one side had the protection of the United States during the Cold War and the other side did not. The military umbrella, economic aid (beginning with the Marshall Plan), and other goodies dispensed by the United States permitted Western Europe to become the island of wealth that it is today. Having achieved that wealth on the back of the United States, Western Europe is now using it as a club to make Eastern Europe distance itself from the United States.
The irony gets richer, though. The West Europeans have been full throated in their complaints about the American "hyperpower," the arrogant unilateralist that uses its power to get other countries to do its bidding. Now, however, finding itself with the upper hand vis- -vis its eastern cousins, the E.U. has not the slightest hesitation about threatening their economic futures, which are necessarily tied to the E.U., to ensure that Americans remain subject to extradition and prosecution for their exertions abroad.
This is not the first time that Western Europe has threatened its Eastern European cousins to shape up and do as they do. Six months ago, the prime minister of the Czech Republic said some very true and therefore necessarily rude things about Yasser Arafat. Among other observations, Milos Zeman said that Arafat was a terrorist and that Israel should not be forced to negotiate with him. Zeman was a little ahead of his time. The United States has by now said precisely the same thing. But for that, and for the indiscretion of comparing Arafat to Hitler and Palestine to the Sudetanland, Zeman incurred the wrath of the E.U.
"Such language is not what we expect from a future member state," declared the European Union in a not so subtle message that if you want to join the club you had better parrot the club's prejudices. By May, the Czechs were apparently on board. After a Brussels meeting with Zeman, E.U. foreign policy chief Javier Solana declared with satisfaction that the Czech Republic had aligned itself with the E.U.'s Middle East policy.
It is no accident that Romania should have wanted to sign on with the United States on the ICC or that the Czech Republic would have expressed a position on the Middle East more in accord with the American than with the West European view. It is perhaps the greatest irony of the post-Cold War era: America's closest friends in the world are those nations that were once Soviet colonies. We can count far more on the goodwill and support of former Warsaw Pact countries than on our longtime West European allies (with the occasional exception of Britain).
The reason is not hard to see. East Europeans retain a residual pro-Americanism that derives in part from gratitude for America's half century of struggle to end their enslavement to Moscow. Whatever gratitude Western Europe might have had for its liberation 50 years earlier has quite dissipated.
But it is more than just a question of gratitude. East Europeans have the immediate, almost current, personal experience of having lived under tyranny. They have a much keener appreciation of the value of liberty, the price that must be paid to sustain it, and the role of the United States in securing theirs and everyone else's.
West Europeans, after half a century under the American umbrella, have come to believe that their freedom is self-generated. It is by now, they feel, a simple birthright, as natural as the air they breathe. When they see the United States slaying dragons abroad--yesterday Afghanistan, today Iraq, tomorrow who knows who--they see a cowboy whose enthusiasms threaten to disturb the perfect order of things, best symbolized, of course, by the hushed paper-shuffling at the International Criminal Court.
The East Europeans suffer none of these illusions. They emerged from the Cold War chastened and realistic and, above all, acutely aware of the power and presence of evil. The West Europeans, having been spared that history, make dialogue with evil their mission. They seek accommodation--and lucrative oil contracts--with the Iranian mullahs, the chief sponsors of terrorism around the world; they make the case for Iraq, first for lifting sanctions, now for preventing American-led regime change; and more generally, they advocate a "nuanced" and "sophisticated"--surtout pas trop de zele--approach to international miscreants.
Except for Mexico's Vicente Fox, the only world leader to have been given a formal state dinner by this administration was the president of Poland. Some thought this odd. On the contrary, it was a perfectly pitched acknowledgment of the new reality in Europe--of where America can today expect to find real friends as the war against the new totalitarians and the new barbarians grows more intense and more dangerous. I was at that state dinner. Looking around the room, I noted to a friend of mine on the absence that night of the rancor and animosity that we have come to expect from the West Europeans. "Imagine how many real friends we'd have in the world today," he observed wickedly, "if we'd let the Soviets have Western Europe for fifty years too."
Charles Krauthammer is a contributing editor to The Weekly Standard.