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ICC in Gaza October 15, 2010

Posted by daviddavenport in Policy Articles & Papers.
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David is one of the international law scholars presenting to the Prosecutor of the International Criminal Court this week (10/20/10) based on the following paper he submitted to the Prosecutor in November, 2009.  Please click on the link below to read the paper:


Politics Masquerading as Law (Townhall.com) August 30, 2010

Posted by daviddavenport in Radio Commentaries.
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Spanish courts are once again exercising their political muscle in the name 

Courtesy of Townhall.com

 of international law. A Spanish judge has issued arrest warrants for three American soldiers accused of killing a Spanish civilian in the early days of the Iraq war. This despite the fact that these charges have been dismissed twice and an investigation also cleared them.

Even the International Criminal Court recognizes that a country’s own investigation takes primacy over legal actions by other nations.

 Spanish judges have a history of trying to bring cases against government officials from other countries, including cases against American officials for Guantanamo and Israeli leaders.  This is essentially politics masquerading as law and is a further warning that international courts present a danger to American sovereignty and values.

To listen to the audio:  http://townhall.com/talkradio/Show.aspx?RadioShowID=11&ContentGuid=e961d399-aaba-4fee-8cb4-b92f88e53bff

International Criminal Court May Cross a Line in Gaza (Townhall.com) October 20, 2009

Posted by daviddavenport in Radio Commentaries.
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The 7-year old International Criminal Court is starting to feel its oats.  

Courtesy of Townhall.com

After indicting the president of Sudan for war crimes in Darfur, the prosecutor is weighing an investigation of Israeli officials for alleged war crimes in Gaza.

But wait, neither Israel nor the Palestinian Authority, which brought the complaint, is a member of the court.  That’s why the prosecutor at first rightly said the court had no jurisdiction over events in Gaza. But political pressure has caused him to reconsider.  

This is precisely the kind of politicized, expansionist role many of us feared the International Criminal Court would play.  Early word from the Obama administration has been that cooperating with the ICC is part of improving America’s image abroad. 

Let’s hope the Obama administration remembers how to say “no” to the politics of this, and other international courts. 

To listen to the audio:  http://townhall.com/TalkRadio/Show.aspx?RadioShowID=11&ContentGuid=3d0105dc-5322-48fd-a787-722500cd1895

International Courts Are Off Track (Townhall.com) May 27, 2009

Posted by daviddavenport in Radio Commentaries.
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International courts are confused, neglecting what they should be 

Courtesy of Townhall.com

 attacking–namely piracy–and stirring around in things over which they have no real jurisdiction–alleged crimes by the U.S. in Guantanamo and by Israel in Gaza.

A Spanish judge is investigating former U.S. officials for alleged war crimes 5000 miles away in Guantanamo, as well as Israel for alleged war crimes in Gaza. Meanwhile a court in Norway and the International Criminal Court consider weighing in on Israel. 

The questionable basis for these investigations is the doctrine of universal jurisdiction, on which any court in the world can claim jurisdiction over certain crimes. Funny, but that doctrine was developed for piracy, and today no court seems interested in that. In fact, our allies engage in pirate catch and release. 

It’s all backwards in international courts.

To listen to the audio:  http://townhall.com/TalkRadio/Show.aspx?RadioShowID=11&ContentGuid=9903644c-903a-4403-91ef-c8d2cf24598b

U.N. reformers ask the wrong question (San Francisco Chronicle) September 21, 2005

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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Pop singer Elton John had it wrong. “Sorry” isn’t the hardest word. It’s “reform.”

Just ask Gov. Arnold Schwarzenegger, whose “year of reform” in California is bogged down in sinking opinion polls and politics as usual. Or President Bush, whose proposals to reform Social Security are going nowhere. There is some consensus that tort reform, health-care reform and campaign-finance reform are all needed, but they struggle to gain support.

As the United Nations anticipated its 60th birthday this fall, Secretary-General Kofi Annan jumped on the reform bandwagon,urging widespread changes at the United Nations — and not a moment too soon. Congress recently called on the United Nations to adopt sweeping reforms or else lose the dues of its largest contributor, the United States. With much fanfare, President Bush and 150 other world leaders met at the United Nations last week to approve a set of reforms, but the largest meeting of world leaders ever held produced only sound and fury, as Annan’s bold reforms were reduced to a 35-page document with a few meager changes.

The definition of the word suggests one reason why reform is so difficult. To reform is to change into an improved form, or to end a bad practice by introducing a better method. At the United Nations, who is to say what is “improved” or “better”?

Annan and the ambassadors of many nations think it is better to allow greater used of humanitarian intervention, while others fear improper invasions of national territory. The United States believes it is an improvement to bar nations that have notoriously violated human rights from membership on the U.N. Commission on Human Rights, but some nations do not favor such limitations.

A 19th-century reformer identified another problem with reform when he said: “It consists in taking a bone from a dog. Philosophy will not do it.” Reforming the United Nations inevitably means taking power now held by some and redistributing it to others. For example, one of the central U.N. reforms proposed and rejected was expansion of the membership of the U.N. Security Council. This is no mere matter of philosophy to permanent members of the Security Council whose power would be diluted by such reform.

Annan and other U.N. reformers including U.N. Ambassador John Bolton are asking the wrong question. They are asking how to make the United Nations a better action body. The United Nations is not and will never be effective at taking action. Its highest and best use is to gather the nations of th world — regardless of their systems, values or beliefs — under one roof for interaction and communication. In that sense, if there were no United Nations, then we’d have to invent one. But the very diversity that makes it effective as a world forum renders it ineffective as an action body. In a world where disasters and violence come fast and furious, the U.N. debaters will also be too little, too late.

When action is needed, the world has learned to work around, not through, the United Nations. Proponents of the new International Criminal Court, for example, acknowledged that they organized the body with an independent prosecutor and other unusual provisions in order to avoid the politics and powers of the U.N. Security Council. Advocates of a ban on land mines or changes in climate control called their own conferences and adopted their own treaties, circumventing U.N. agencies and processes. The United Nations and its coalition went into Iraq when the U.N. Security Council would not adopt a further resolution. Even in humanitarian disasters, hundreds of nongovernmental organizations can deliver more aid faster than the United Nations.

Sixty years after its founding, let’s give the United Nations high marks as an international forum. But the action bodies of the 21st century are coalitions of the willing, nations with common values who will join together to create courts, enact treaties, stop genocide and provide relief. All the high-minded reforms on the table will not — and should not — transform the United Nations from a debating society to a fast-action team.

This op/ed appeared on Page B-9. URL: http://sfgate.com/cgi-bin/article.cgi?file=/c/a/2005/09/21/EDGA8EQJ7t1.DTL

Move over Scott Peterson, here comes the trial of Saddam Hussein (San Francisco Chronicle) July 18, 2004

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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The stars of this summer’s blockbuster movies have nothing on the high-profile defendants facing trials in the criminal court system.

Scott Peterson, Kobe Bryant and Michael Jackson are all marquee attractions in the reality whodunits that grab daily headlines in courthouses from Colorado to California, not to mention their corporate counterparts, Martha Stewart and Enron’s Ken Lay.

Now comes the most notorious criminal defendant of them all: Saddam Hussein. From a courthouse rigged up on the grounds of one of his former palaces, the deposed Iraqi leader recently faced charges of genocide, war crimes and crimes against humanity for which he will stand trial before a three-judge panel of his fellow countrymen.

But the trial of Hussein will be unlike anything Americans have seen on courtroom television. If criminal trials are complex dramas, that goes double for political criminal trials, at least triple for international political criminal trials.

This will be an extraordinary difficult case, not because we don’t know whether Hussein is guilty or what crimes he committed, but because of highly problematic procedural, evidentiary and political issues that must be played out before a world audience on a fragile Iraqi stage.

Procedurally, there is almost no precedent for a trial like this. There is the “victor’s justice” of the Tokyo and Nuremberg criminal tribunals after World War II, in which the victorious allies, trying war criminals in Germany and Japan, carried out relatively swift justice. In many ways, Iraqis could benefit from that kind of closure to the Hussein chapter of their history.

Since Tokyo and Nuremberg, however, the court of world opinion has come to demand far more objective and extensive procedures in trying international tyrants.

More typical of this modern approach are the criminal tribunals established in the 1990s in connection with the genocide in Rwanda and the many crimes committed by Slobodan Milosevic and his henchmen in the former Yugoslavia.

Unfortunately, the Milosevic trial has been a long, tedious, propaganda filled reminder that more process does not necessarily produce a better outcome.

The trial, conducted in a special international tribunal at The Hague, has gone on for a year, and Milosevic has not yet presented his defense.

Finally, the United Nations — which has never met a lengthy process it didn’t like — has called for a “completion strategy” for the Yugoslav tribunal, which is expected to expend more than $1.5 billion over 18 years to try 100 cases, including Milosevic’s. Think “independent counsel” in slow (and expensive) motion.

Finding the right balance between a procedurally fair yet orderly and just trial of an obvious criminal is job one for the fledgling Iraqi justice system.

Judges should not allow Hussein to call leaders from Western democracies as “witnesses” to politicize the trial, as Milosevic has been allowed to do.

The tribunal should resist efforts under way by international human rights organizations to preclude the death penalty and, instead, appropriately follow Iraqi law, which allows it in cases involving murder and rape.

Beyond these procedural problems lie major evidentiary challenges. Knowing that Hussein committed heinous international crimes and offering proof of them in a court of law are two very different propositions.

Many of these crimes were committed 20 years ago, making it difficult to gather evidence and assemble witnesses.

We believe we know where the victims’ bodies are buried, but must they be exhumed and examined for trial? Finding witnesses who were high enough in the chain of command to corroborate Hussein’s intent to commit genocide or his authorization of war crimes could be difficult.

To manage these problems of evidence, prosecutors would be well advised to try Hussein for a limited number of crimes, not the 300 suggested by some experts or even the 66 criminal charges brought against Milosevic.

Even with the assistance of legal experts from the United States and elsewhere, it will take months to gather the necessary evidence to begin the trials, and perhaps as long as a year or two before Hussein faces his judges.

Adding to the pressure, the whole world is watching. Hussein’s first wife has already gathered an international dream team of about 20 attorneys, including at least one from the United States and one from France.

Human Rights Watch has issued a pre-emptive critique of the proposed trials, noting the judges’ lack of experience in trying crimes against humanity and the fact that the Iraqi system allows for the death penalty and may not require proof beyond a reasonable doubt.

Surely the United States did not hand over Hussein to the Iraqis without being convinced it would result in an orderly trial, a likelihood of conviction and the prospect of the death penalty.

Iraqis themselves will have a myriad hopes for the trial. Some may wish that the United States be discredited; others that Hussein’s victims receive justice, if not revenge.

Judges and lawyers often say that hard cases make bad law. This is a case that may be made difficult by the law, if process becomes king and makes it impossible to complete an orderly trial of Hussein within a reasonable time frame.

Not so truly international institutions (San Francisco Chronicle) January 21, 2004

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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Democratic House Leader Nancy Pelosi articulated one of her party’s campaign themes this week, saying that President Bush “disregards international institutions” and “rejects global treaties.” Of course this perpetuates the stereotype of Bush as a cowboy leader who is positioning the United States as a “Lone Ranger” in international affairs.

Before jumping to such conclusions, however, consider just how international these institutions and treaties really are. Take the International Criminal Court, for example, one of the organizations Democratic presidential hopefuls say Bush was wrong not to join. How international is this institution, and is the United States out of step in not ratifying its treaty?

These are timely questions because the president of the ICC, Philippe Kirsch, was in the United States campaigning for the court last week. He had visited China, because the most populous nation in the world also has not ratified the treaty creating the court, and he was on his way to Russia, which is the third of five permanent members of the United Nations Security Council to not ratify the court treaty.

In fact, of more than 190 states in the United Nations, less than half have ratified the statute creating the court. More interesting still, the population of those countries ratifying the court constitutes only about 25 percent of the world’s people. Besides China, Russia and the United States, other nations that have not ratified the court include India, Japan, Mexico, Israel, Egypt, Pakistan and Indonesia.

So, if more than half the nations of the world, representing some 75 percent of the world’s population, have not ratified this international institution, who is really behind it? The answer is that the International Criminal Court — along with the Kyoto climate and Ottawa landmine treaties — is largely a creation of nongovernmental organizations (NGOs).

The expanded role of NGOs in treaty-making is one of the most important untold stories in international law and politics. It has been estimated that the number of international NGOs has quadrupled in the last decade to the point where there are now more than 50,000 of them. Previously relegated to the hallways of diplomatic negotiations as advisers, NGO leaders now take the initiative in drafting, negotiating and promoting international treaties.

In the case of the international court, for example, experts widely acknowledge that the most important force behind the creation of the court was an NGO headed by American William Pace. Some 1,000 NGOs, led by human rights organizations such as Amnesty International and Human Rights Watch, were a part of his umbrella organization and they collaborated with and led the efforts of several small and medium-sized states to set the agenda. Similarly, American NGO leader Jody Williams received the Nobel Prize for her crucial leadership in the adoption of the Ottawa landmine convention.

What’s wrong with this picture? NGOs are wonderful advocates, but not balanced leaders of truly international processes. For one thing, they are generally single-issue interest groups. They would and did sacrifice a number of legal and procedural niceties in creating a court, for example, in order to accomplish their human rights’ agenda.

They also undercut multilateral institutions, such as the International Law Commission, which had been charged by the United Nations and with developing a court, and the U.N. Security Council, which has historically referred cases to international criminal courts.

Significantly, the NGOs developing treaties seem to be on the same side of the issues. Those participating in climate control negotiations favor strong standards, while those creating the international court wanted a court of unprecedented jurisdictional powers. Rather than seeking a broad consensus among nations, the NGOs favor coalitions of the willing to adopt strong treaties that achieve their goals. Their lack of accountability and active leadership role caused one state delegate to the international court meeting to ask: “Who elected these NGOs anyway?”

Before concluding that the United States has taken a narrow or misguided position on international treaties and institutions, look more deeply. Though they have high-sounding titles, international treaties and organizations are just politics in formal attire.

This op/ed appeared on Page A-23.

ICC – New Threat to U.S. Sovereignty (NewsMax.com / United Press International) August 27, 2003

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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Just below the international headlines about Iraq adn the Middle East has been an important series of stories about a major new venture: the International Criminal Court.

To some, this new court in the Hague is the most significant international institution since the United Nations. To others, including U.S. policymakers, it represents a major threat to national sovereignty and values.

Consider the tug-of-war between these views of the new world court from this summer’s headlines:

* At the request of the United States, the U.N. Security Council voted 12-0 to exempt U.S. soldiers serving on U.N. peacekeeping forces from prosecution by the International Criminal Court for one year. U.N. Secretary-General Kofi Annan protested and France, Syria and Germany abstained in dissent. Supporters of the court claimed that the resolution was inappropriate and illegal.

* The Greek Bar Association filed a complaint with the new court charging British Prime Minister Tony Blair with war crimes in Iraq. President George W. Bush avoided charges because the United States did not sign the treaty, fearing political prosecutions of just this kind.

* The United States seeks bilateral agreements with allies agreeing not to turn American soldiers on their territory over to the International Criminal Court for prosecution. Countries not signing such agreements by July 1 faced the loss of military aid, causing charges that the United States was bullying weaker countries into cooperating with its anti-court crusade.

* When the U.S. president arrived in Senegal, protestors changed “Bush is a criminal … send Blair to the International Criminal Court.”

* Summarizing the U.S. position on the International Criminal Court, a headline in the London-based Economist magazine read: “America versus the rest.”

The truth is that the concept of an International Criminal Court could and should represent a strengthening of justice and the rule of law. But the devil is in the details, and the development of this particular court represents a significant treat to American sovereignty.

Sadly, this is no accident. Proponents of the court aggressively expanded its jurisdiction so that it would necessarily undermine national sovereignty and attempt to shift power away from the United States. Now they seem surprised that the United States is resisting this overreach of international power.

Historically, international criminal courts have been established on a case-by-case basis, as needed, and the United States has supported every one. From criminal tribunals in Nuremberg and Tokyo following World War II, to ad hoc tribunals for Rwanda and the former Yugoslavia in the 1990s, these special courts have prosecuted war crimes, genocide and crimes against humanity.

The United States not only supported each of these special tribunals, but also the movement to establish a permanent court. But a funny thing happened on the way to Rome in 1998, where diplomats planned to discuss a framework for the ICC. A group of human rights groups such as Amnesty International and Human Rights Watch joined with small- and medium-sized states such as Canada and several of the European Union countries to expand the jurisdiction and powers of the proposed new court.

Rather than involving the U.N. Security Council in referring cases, as had been done historically, this group wanted an independent prosecutor who could bring cases more proactively. Whereas international law limits the effect of treaties to those nations that sign them, proponents of the court wanted it to have jurisdiction over citizens of non-party states. And they wanted to add a new, undefined crime of “aggression” to the list of crimes the prosecutor could charge.

These were overreaches of jurisdiction beyond anything done before and they were out of step with the recommendations of the International Law Commission charged by the United Nations with structuring the court. Therefore, the United States rightly objected to them.

The surprise was not that the United States refused to go along with this expansive agenda for the court, but that proponents of the court rushed it through to approval without the support of major world powers. Even today, fewer than half the nations of the world, representing considerably less than half its population, have ratified the treaty.

How, then, is U.S. sovereignty affected by a treaty the United States ahs not ratified? The court purports to have jurisdiction over crimes committed by citizens of states that have ratified the treaty, but also crimes committed on the territory of signatory states. As a result, the United States, which has more troops engaged in peacekeeping and other missions around the world than any other nation, is most vulnerable. Supporters of the court argue it is nonsense for the United States to fear prosecution by the International Criminal Court, since its purpose is to provide justice in areas where local and regional courts are not up to the task.

The new president of the court, Canadian Philippe Kirsch, recently confirmed: “It is not designed (for) democratic leaders.” Of course, charges have been filed against Blair for war crimes in Iraq, and no one doubts that similar complaints would be made against U.S. leaders if the United States or Iraq were a party to the court.

Belgian courts, which also assert universal jurisdiction over war crimes, genocide and crimes against humanity, have a full docket of democratic leaders, including Gen. Tommy Franks and former President George H.W. Bush.

In fairness, proponents argue, court filings against democratic leaders must not result in court action. Only time will tell, of course, and no one should doubt that the political pressures that created such expansive jurisdiction for the court, and the anti-American sentiment behind it, will result in great pressure on the prosecutor to pursue such cases. And, as we have learned with special prosecutors in this country, even the filing of charges and subsequent investigation are themselves highly charged and politically powerful.

Court supporters also claim that the principle of “complementarity,” included in the Rome treaty, prevents the International Criminal Court from pursuing cases that local jurisdictions can and do pursue. On closer legal analysis, however, complementarity has holes you could drive a truck through.

If the United States, for example, did not prosecute one of is soldiers for a war crime, the court could easily find the Untied States “unable or unwilling” to pursue the matter and go forward anyway. Listen to internationalists talk about their views of our military tribunals or the death penalty, and it is easy to see how U.S. courts could be ignored.

In the end, the International Criminal Court is not just about justice, as it could have been with careful drafting of the Rome statute. It is equally about international politics and altering the balance of power. Small- and medium-power states actively seek to develop international institutions that will proactively balance the economic, military and diplomatic power of the United States. The International Criminal Court is only their latest creation, and the United States is right to oppose its aggressive jurisdictional reach.

Blair’s international court backfires (Scripps Howard News Service) June 3, 2003

Posted by daviddavenport in Op/Eds.
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Tony Blair and George W. Bush were wartime allies, but one issue dividing them has been participation in the new International Criminal Court. Blair and his fellow Brits could not believe the United States would not ratify the Rome Treaty establishing the court. Even the prime minister’s wife Cherie Booth – not usually a policy wannabe – publicly criticized the United States for its refusal to join.

While England chided America for fearing that its military and political leaders might be brought before the new court if it was a party, Blair now finds himself one of the first world leaders who will be reviewed by the ICC prosecutor.

The Greek Bar Association has announced that it will file a complaint with the ICC charging Prime Minister Blair with war crimes and crimes against humanity in Iraq. Since neither the United States or Iraq is a party to the court, President Bush cannot be prosecuted.

Even before the newly elected prosecutor, Argentine and Harvard Law Professor Luis Moreno Ocampo, takes office, the ICC is proving its critics right and its defenders like Blair wrong. Supporters of the ICC repeatedly said the court was being formed to deal with human rights violators in countries whose systems were too weak to bring them to justice. The genocide in Rwanda and in the former Yugoslavia were held out as prime examples. Opponents of the court, such as President Bush, were derided for expressing fear that the ICC would be a highly political body, likely to attack American foreign and military policy.

In fact, the primary proponents of the International Criminal Court were human rights organizations like Amnesty International and Human Rights Watch who are strongly opposed to U.S. foreign policy. Nearly a thousand of these NGO’s (nongovernmental organizations) worked with a handful of like-minded states, largely Blair and his colleagues in Western Europe, to push the court through.

Even today, as the court prepares to review its first cases, less than half of the nations of the world, and well under half the word’s population, have signed onto this “international” court, yet it claims the authority to make judgments about world leaders like Blair.

Make no mistake, it would be extraordinarily difficult for one prosecutor and three criminal judges to make judgments about whether the use of cluster bombs constituted a war crime, or whether targeting a missile close to civilians is a crime against humanity or a legitimate military strategy. These are essentially military and political questions, not criminal or judicial ones. But when you add political pressure from the creators and proponents of the court – like th Greek Bar Association – the court becomes a political tool more than a legal one.

The ICC is a political tool almost regardless of the outcome of the charge. If Blair ignores a criminal prosecution, he would have difficulty traveling in countries that might turn him over to the court. Even if the prosecutor investigates but issues no formal charge, Britain will have been roughed up politically for no good purpose. We have learned in this country how damaging an independent counsel investigation itself can be, with the ultimate outcomes sometimes secondary to the politics of the process.

Even the United States, with its staunch opposition to the ICC, is not unaffected. No one should doubt that taking Blair to the ICC for war crimes is an effort to try Bush’s policy as well. Ironically, if Iraq had signed onto the court, taking advantage of a perverse provision that would have allowed it to exempt itself from war crimes provisions for a period of time, Bush could have been brought before the court, but not Saddam Hussein. At the same time, a human rights lawyer is bringing a charge against U.S. General Tommy Franks in Belgian court for similar war crimes.

The irony of Blair being hoist by his own ICC does not end there. It was Blair’s government that arrested Gen. Augusto Pinochet, former head of the Chilean army, while he was in Britain when a Spanish judge wanted him for war crimes prosecution. This started the whole business of trying to turn political, diplomatic and military matters over to lawyers and courts that have neither the authority nor the expertise to deal with them. The International Criminal Court is simply politics by other means, and Blair may learn that his friend George W. Bush was right to steer America clear of it.

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

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