In This Case, Might Is Right

By Michael Elliott

Who could be against bringing war criminals to justice? On the face of it, the Bush Administration, which wants U.S. armed forces to be immune from prosecution before the new International Criminal Court (ICC). High-handed American arrogance again? Not exactly.

The U.S. is not a party to the treaty that established the court. (President Clinton signed the treaty, with many reservations, but the Bush Administration has "unsigned" it.) Despite what you might suppose, Washington is not alone; neither China nor India has signed the treaty, and Russia has not ratified it. But under the treaty's terms, American soldiers could be subject to the court's jurisdiction for actions committed in nations that have signed and ratified the document. Washington wants protection for its peacekeepers. Until it gets its way, the Administration is holding up renewal of the U.N. peacekeeping mandate in Bosnia. Europeans say the U.S. could protect its interests by signing the treaty while negotiating exemptions. Washington says that a signature would be the first step on a slippery slope; once it had conceded that Americans could be subject to the court's jurisdiction, the way would be open for a foreign prosecutor to frivolously accuse a U.S. soldier (or Defense Secretary, for that matter) of war crimes. Europeans say safeguards prevent such an eventuality. (The ICC, for example, is meant to take up cases only if national authorities fail to investigate complaints.) And so the squabble poisons an Atlantic relationship that is already sour.

As usual, in matters that pit Americans against Europeans, there's plenty of mutual ignorance. Americans don't understand that for Europeans, whose memory of war crimes is deep, anything that codifies the rightful conduct of war is ipso facto desirable. Europeans seem unable to appreciate the import of congressional sentiment against the court. Congress (unlike most European parliaments) is not a rubber stamp; it has a constitutional role in international affairs, and it takes it seriously.

As is often the way with the Bush Administration, however, Washington is making the worst of a good case. There are sound reasons for exempting American troops and officials from the ICC's purview. In the world today, the U.S. is uniquely powerful, with a near monopoly on the ability to project force globally. American power is much in demand. From the Balkans to the border between North and South Korea, American armed forces maintain a degree of stability in places that would otherwise be flash points. But this very ubiquity of American power has bred a natural resentment. The Bush Administration is not entirely paranoid to imagine that American mistakes--like bombing a Chinese embassy in Belgrade or an Afghan wedding party--are more likely to be the source of international condemnation than those made by other nations. Yet just as it did with the Kyoto accord on global warming, the Administration is making its case with the subtlety of a sledgehammer, giving the impression that it will pick and choose which international obligations it likes. That will merely encourage others to do the same.

A cleverer approach would be for the Administration to applaud those who set up the court, and look forward to the day when laws govern the ways that nations and their armed forces behave. But Washington should argue that for now, the world is a dangerous place. It often falls to the U.S., as the most powerful nation on the planet, to apply force so as to mitigate evil. True, the U.S. uses its power primarily in its own interest, as do all other nations; nonetheless, the American military machine is a unique global resource whose actions often accrue to the benefit of others. It is in the interests of everyone that there should be a broad domestic consensus within the U.S. in favor of a global role for its troops. Such a consensus will not be maintained if Americans fear that their children run the risk of prosecutions in foreign courts brought by grandstanding magistrates looking for easy popularity.

That case, inevitably, would be attacked by Europeans because it demands that the U.S. be treated as special. In fact, it is. The failure of the Bush Administration is its inability to articulate why other countries profit from America's military power. No other nation, or group of nations, could conceivably replace the U.S. as the world's policeman; but like it or not, that American role will be played on American terms. Europeans should ask themselves whether, right now, the ICC is worth more than continued American engagement in the world. The answer is easy.