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July
16, 2002, 9:15 a.m.
Stay
Out the Court
The U.S. has
no business in the International Criminal Court.
By Frederic
Smoler & Clifford D. May
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United States seems to be backing off its insistence that American troops
taking part in peacekeeping operations be exempt from prosecution by the
new International Criminal Court (ICC). In some circles, Washington's
willingness to compromise is being celebrated as a prudent display of
concern for the good opinion of "the international community."
The fact remains: Conceding jurisdiction to the ICC — a war-crimes
court created by a treaty we have never ratified — would be a serious
mistake.
This is a not a matter
of our acknowledging that American soldiers are not above the law, because
American soldiers have been and remain subject to American law, as applied
by our civil and military authorities. The question is whether American
soldiers should now be subject to laws not passed by any American lawmaker
in a court accountable to no one. The ICC is to enjoy unconstrained power
to interpret law — to decide what is a "war crime," what
constitutes "torture" and how much force is "excessive
force." Is it prudent to entrust our soldiers — who are now
engaged in a war against terrorists who violate the most fundamental laws
— to judges and prosecutors appointed by and from "the international
community"?
Keep in mind that
the "international community" includes a lot of people who believe
that American soldiers have been committing massive war crimes in Iraq,
Kuwait, Bosnia, Serbia, Kosovo, and Afghanistan. Those holding these beliefs
include prominent journalists, academics, politicians, and jurists. To
take just one example, in the prestigious London Review of Books,
Mary Beard, a professor at Cambridge, wrote regarding September 11: "The
United States had it coming. That is, of course, what many people openly
or privately think. World bullies, even if their heart is in the right
place, will in the end pay the price." In some countries, these views
are widely distributed: A recent poll showed that only 6 percent of Greeks
think that the U.S. response to Sept. 11 was justified. Knowing all this,
does it really make sense to now give Europeans the power to accuse, prosecute
and judge American men and women in uniform?
While it is true
that the jihadist terrorists bear hatred for all democratic societies,
it is equally true that their principle target is America (and, of course,
Israel). A court that will restrain American aggressiveness in the war
against terrorism while doing nothing to restrain the jihadists may serve
some interests — but clearly not American interests.
All this points to
the fact that while Americans and Europeans have much in common, significant
differences have emerged. The Europeans today are involved in a grand
experiment: surrendering national sovereignty to international bodies.
While we should wish them well, there is not a shred of evidence to suggest
that Americans want to participate in their project.
Americans are not
asking to be above criticism while we exercise our right to self defense.
But most of us are not eager to delegate — even to our friends —
the power to put Americans on trial and send Americans to prison in an
effort to ensure that Americans do not defend themselves in ways our friends
deem overly zealous. We have more confidence that we will punish our own
criminals than we have trust in the ICC's ability to distinguish crimes
from the necessities of war.
President Bush —
whose approach to the war on terror is favorably viewed by Americans but
disdained by European elites as unsophisticated — no doubt understands
all this. But to act on his understanding will require that he overrule
his more "sophisticated" advisers.
—
Frederic Smoler is a professor at Sarah Lawrence College, a contributing
editor at American Heritage magazine, and a senior fellow of the
Foundation for
the Defense of Democracies. Clifford D. May is the president of the
Foundation for the Defense of Democracies.
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