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Trials in error (Scribbs Howard News Service) May 6, 2003

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.

– Don’t read their lips; read their court dockets.

While European leaders have softened their anti-American rhetoric following the swift and decisive war with Iraq, international human rights lawyers are busy filing lawsuits against U.S. military and political leaders in Belgian courts. These suits – naming coalition commander General Tommy Franks, President George W. Bush, Secretary fo State Colin Powell, Vice President Dick Cheney and others – are but a preview of a wave of international criminal cases that will continue to chill the U.S.-European relations.

Even before the allied forces officially declare victory in Iraq, a noted human rights lawyer has announced that he is filing a suit on behalf of 19 Iraqis against General Tommy Franks in a court in Belgium. The lawsuit will claim that Franks at least one other unnamed military leader, committed war crimes in Iraq in 17 separate incidents, including firing on ambulances, dropping cluster bombs that injured civilians, bombing a marketplace in Baghdad and failing to prevent looting. In March, a similar suit was filed on behalf of other Iraqis against former President Bush and his key aides from the 1991 Persian Gulf War.

In prior wars the victors set up tribunals to try defeated war criminals, as was done following World War II and in the former Yugoslavia. In a novel European twist, Belgium – which otherwise had no part whatsoever in the conflicts – purports to try the American victors of both the Gulf War in 1991 and the recent war in Iraq. Belgium’s law of universal jurisdiction, in 1993, claims the authority to try anyone in the world for any serious war crime, whether connected with Belgium or not. Thirty world leaders face cases in Belgium, including Ariel Sharon of Israel and Palestinian leader Yasser Arafat.

One obvious response to these filings is: So what? What is the legal effect of one small European country deciding to try world’s political and military leaders? One problem is that Belgium claims the right to try these leaders whether they appear in court to defend themselves or not. If the court issues an indictment, General Franks can be tried in absentia, convicted and sentenced. If he touches foot on Belgian soil – Brussels is the headquarters of NATO and other international bodies – he would be subject to arrest.

But these cases are not so much an aberration as they are a preview of coming attractions. The United States has taken a beating in the court of European opinion for not joining the new International Criminal Court being formed in the Hague. Among U.S. objections has been that the court’s “independent prosecutor” and elected judges will oversee a highly politicized process. The European leaders of the court have pooh-poohed American concerns that U.S. military and government leaders could be brought before this court for political trials about American military and foreign policy. It is our intent to try only the worst and most obvious perpetrators of war crimes, the court’s advocates have said.

Here is Exhibit A of America’s concerns: General Tommy Franks is to be sued in an international court over American military policy and strategy. The suit is not brought in the International Criminal Court because neither the U.S. or Iraq is a party, but Belgium provides a surrogate courtroom. A key part of the European and human rights strategy is to shift international influence away from economic, political or military might – where the United States is dominant – to courtrooms of world opinion. Imagine a Belgian criminal judge, or three International Criminal Court judges, deciding whether cluster bombs were reasonable alternatives for the United States to use in the military campaign against Iraq. And for real political trials, wait until the International Criminal Court adds “aggression” to its list of crimes, as currently planned.

America-bashing was good sport for Europeans well before the war in Iraq and will continue after it is over. Unfortunately it will now travel under the guise of “international law” in the courtrooms of Belgium and the Hague.

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