Global Policy Forum

By Robert Kagan

We hear it said these days that the United States should show more sensitivity to the concerns and interests of our European allies. No doubt true. But it would be nice if the Europeans showed a little understanding now and then, too.

Take the current flap over the International Criminal Court. The treaty establishing the court goes into effect tomorrow. The Bush administration, which has withdrawn President Clinton's ill-advised signature of that treaty, is demanding immunity from prosecution by the ICC for any American soldiers serving abroad as peacekeepers. American officials fear some independent-minded prosecutor, answerable to no one, might someday bring charges against an American for war crimes.

It's a legitimate concern. In 1999, during the war over Kosovo, there were some in Europe, and in the United States, who accused the American military of war crimes when it bombed Slobodan Milosevic's Serbia. Starting tomorrow they would be able to bring charges against American soldiers at the ICC. So the Bush administration has threatened to veto renewal of the peacekeeping mission in Bosnia in the U.N. Security Council if the necessary protections are not put in place for American peacekeepers serving in that mission. The Europeans so far have refused to make any concessions.

The dispute highlights much of what divides Americans and Europeans these days. Europeans, along with many other less influential and less worthy nations, are trying to advance their vision of international civilization, with a web of international laws and institutions assuming authority over individual nation-states. Not surprisingly, the world they're trying to create looks an awful lot like the European Union, where rules and laws are more important than military power. And not surprisingly, they're none too happy about the militarily dominant United States placing itself above or outside their new international legal system before it's even begun.

Americans are hardly hostile to international law -- the United Nations was their idea. But the United States has a special problem, one that its European allies ought especially to appreciate. As the world's most powerful democratic power, the United States is called upon -- yes, called upon -- far more frequently than any other nation to dispatch its troops overseas for any number of purposes. To liberate nations that have been invaded -- like Kuwait or, say, France. To defend other nations threatened by invasion -- like South Korea and Saudi Arabia or, not so long ago, Germany. Or to defend people threatened by genocide or ethnic cleansing, as in Bosnia and Kosovo. Unlike even the strongest European powers, which have trouble projecting military force even on their own continent, America's entire global strategy is built around projecting military power anywhere at any time, which means the United States is always going to have far more soldiers vulnerable to some misguided ICC prosecutor than any other nation.

But that's only one way the International Criminal Court will have a disproportionate impact on America. It's no secret that the United States, precisely because it is the dominant economic, political, cultural and military force, is more often the target of ire around the world than, say, Luxembourg. Impoverished Egyptians and rich French farmers tend to blame America first. So whose troops are most likely to be hauled before the ICC on some war crimes charge? Even those who believe the ICC is a good idea have to admit, if they're honest, that the United States is going to be more vulnerable than other powers.

The treaty could have been fixed to deal with some of these problems. When the treaty was being negotiated during the Clinton administration, U.S. officials recognized the inherent problems and looked for ways to provide American troops some protection -- such as giving the U.N. Security Council, where the United States has a veto, ultimate say. But Europeans rejected this "double standard" and opted for legal purity. And the Clinton administration, as some officials ruefully, if privately, admit, didn't try very hard to force the necessary changes. President Clinton's last-minute signature of a treaty his officials knew to be badly flawed was, shall we say, less than entirely responsible.

So now the crunch point has come, and the Bush administration is quite rightly playing hardball. There's a lot at stake. Europeans argue that if the United States succeeds in getting special treatment then, as one European diplomat told the New York Times, "rogue states will be popping champagne corks." That kind of argument reveals the utopian silliness that animates too many Europeans these days. "Rogue" states will not voluntarily abide by an international court's rulings, no matter what the United States does or does not do. Not abiding by international rules, after all, is what makes a "rogue" a "rogue." But in the meantime, the United States, which has the lion's share of responsibility for defending the rest of the civilized world against rogue states, will have to worry every time it sends troops into hostile territory.

Can a more liberal international order be built by hobbling the most powerful defender of that order? That's a question our European allies might want to start asking themselves.

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