Just as the showdown over Iraq strained trans-Atlantic relations, so efforts to mend those relations risk straining human rights principles.
Having refused to endorse the U.S.-led invasion of Iraq, France, Germany and their allies now face retribution from the Bush administration. Several European capitals seem gripped by panic in their desire to make amends. This longing to kiss and make up at any price has jeopardized the emerging international system of justice for the worst human rights offenders.
The Bush administration loathes international justice, particularly the newly established International Criminal Court, for fear that it might restrain the unbridled latitude of the United States. Three aspects are at risk of being compromised.
First, the United Nations Security Council resolution on postwar administration of Iraq, which was approved Thursday, speaks in general terms about the importance of bringing Saddam Hussein's henchmen to justice but is conspicuously silent on the means. That suits Washington fine, since it wants a justice process it can control, composed of hand-picked Iraqis, rather than an independent, internationally led tribunal.
What's wrong with an "Iraqi-led" tribunal, as the United States calls it? We know that bringing to justice the architects of the slaughter of some quarter of a million people - the rough toll of Saddam Hussein's government - can be extraordinarily complex. Judges and prosecutors who populated his brutal and arbitrary justice system can hardly be expected to have the necessary expertise, let alone a tradition of fairness and independence.
Even exiled Iraqi jurists, as well as Iraqis from communities historically repressed by the Ba'ath Party who remained in the country, will have a hard time demonstrating the right combination of skills and emotional distance from the former dictatorship. The problem is only compounded because the people Washington designates are likely to be perceived as puppets rather than independent dispensers of justice.
By contrast, an internationally led tribunal, whether fully international like the ones established for Rwanda and former Yugoslavia or mixed national-international, like Sierra Leone's, is more likely to be seen as legitimate and better able to draw from a wide pool of experienced jurists. The UN Security Council thus should, at minimum, establish an international commission of inquiry to decide on the best type of tribunal for Iraq and to preserve evidence such as the mass graves that U.S. troops are now allowing to be despoiled.
U.S. opposition to an internationally led tribunal has nothing to do with the welfare of the Iraqi people. Its distrust of an independent international tribunal reflects its desire to avoid scrutiny of its own military effort and potentially embarrassing revelations about its current and past alliances. It also dislikes international tribunals' rejection of the death penalty. And it opposes any step that might bolster the system of international justice and thus, even indirectly, legitimize the International Criminal Court, or ICC. None of these reasons merits European endorsement.
Second, the Bush administration is pressing governments worldwide to sign bilateral agreements that would immunize Americans from ICC scrutiny. So far, despite threatening to cut off military aid, Washington has arm-twisted only a collection of small and vulnerable states to accept this impunity regime. No European Union government has yet acquiesced, but Britain, Spain and Italy have blocked a common EU rejection.
The ICC treaty does permit transferring suspects to their home countries for investigation and, if appropriate, prosecution, but only on the condition that the ICC retain the power to scrutinize national justice efforts to ensure they are carried out in good faith. So long as Washington resists that oversight, even for crimes committed in countries that have ratified the ICC treaty, European governments should collectively refuse to shield Americans from transfer to The Hague.
Finally, Washington is about to renew its request to exempt all military operations authorized by the UN Security Council from ICC jurisdiction. A year ago, by threatening to veto further peacekeeping operations in Bosnia and risk renewed ethnic cleansing, the Bush administration gained a one-year blanket exemption for such operations. That violated the ICC requirement that any Security Council exemption be granted case by case.
The exemption speaks only in terms of troops from countries that haven't ratified the ICC treaty, but it includes operations in countries that have. It comes up for renewal by July 1, but this time Washington's hand is weaker, since one of the first peacekeeping operations up for extension will be in southern Lebanon.
Because America cannot credibly threaten to leave Israel's northern border unguarded from Hezbollah, European governments on the Security Council should stand firm and reject any blanket exemption.