We should look at what our alies do rather than say.

by Victor Davis Hanson

National Review Online

The United States once again is at odds with Europe and our closest allies. Just as we chose to forgo the environmental and racial protocols drafted at Kyoto and Durban, now we are also apparently passing on the utopian idea of a world court that might subject all our military personnel stationed in peacekeeping missions to trial by international barristers. The arguments for and against are old — and lead nowhere because they involve the brutal truth of American exceptionalism that we cannot openly expound for fear of being dubbed chauvinistic, imperialistic, unilateralist, haughty, or far worse.

Yet the United States in some ways by its very Constitution and Bill of Rights is above such laws enacted by international councils; its vast military ensures that it is not one among equals, but possesses might far above the collective resources of both its enemies and friends. It is rare for lethal military to be coupled with humane government, but such is the case with the United States — and its unusual position in historical terms should be so acknowledged. Europe, which collectively has a population and economy as great as America’s, has chosen not to field a commensurately powerful military — a choice in and of itself rife with moral implications, and explicatory as well of its strenuous efforts to place American soldiers abroad under international control.

America’s past record overseas suggests that it does prosecute and punish its own felons, is largely fair to foreign nationals and aliens, and so is quite different from the United Nations that allows frightening states like Cuba, China, Syria, and Iran often to have a voice in its policy. And as a general rule, American soldiers are far better behaved overseas than are U.N. troops and other personnel. Similarly, I never quite understood why countries such as Egypt, China, Saudi Arabia, the Palestinians, or Syria sometimes refer to their own favorite United Nations resolutions passed by majority vote when they would never allow such democratic machinery such as the General Assembly to operate in their own countries.

But the United States is not merely apprehensive that a Chinese or Syrian prosecutor — who has never brought an indictment under a free and independent judiciary — might decide to charge an American soldier as a “war criminal” should he find himself in a shoot-out with quasi-civilians, or at a future date conclude that an American general in some past fighting in Panama, Grenada, Kuwait, or Afghanistan was once too reckless.

No, it is the Europeans themselves who can be scary. We all remember the recent storm of suits, writs, and indictments that faced Mr. Pinochet when he ventured to England. No one wishes to defend such an unattractive character; but why were the Europeans so eager to put him on trial — when literally thousands of much worse war criminals roamed their continent? Whatever Pinochet did, it pales in contrast to the tally of corpses on the hands of eastern European and Russian commissars. Where are the European indictments to bring to justice the perpetrators of the 1956 Hungarian slaughter, or the executions in Czechoslovakia after 1968? Cannot we find a few dozen who ordered all those killings at the Berlin Wall? Ghastly things were done in Cyprus in 1974 that have never been fully investigated. Surely, Europeans should not allow some ex-Soviets to enter their airspace when such operatives helped to butcher thousands during the last five decades. Neither Mr. Ortega nor Mr. Castro has clean hands; are they indictable should they cross into Europe? If Iraqi government agents are in France or Germany, it is more likely that they are buying weapons than fending off EU writs over the gassing of thousands of Kurds. Many of the al Qaeda operatives who planned Sept. 11 organized themselves right under the noses of European policemen.

One of the more depressing aspects of the recent disclosures from the Palestinian Authority archives has been the direct link between European Union funds and expenditures for a corrupt elite that subsidized suicide murdering. Surely, EU officials must have known — as recent German media investigations have shown — that money from Europe went to Arafat and then on to terrorists?

Will the new international high court indict the Dutch officers in the Balkans who knowingly did nothing while a few miles away Muslims were butchered? Throughout the 1990s, right on Europe’s doorstep, tens of thousands of innocent civilians were shot and tortured — often right in the midst of European “peacekeepers.” Are these criminally negligent officers to remain free? And should not such an international court first prove its own bona fides by indicting all the geriatric Nazis still puttering around Europe, or at least some Swiss financiers who made fortunes off the Holocaust? Instead this new court will more likely indict an American for what he purportedly did in cases of a few deaths, rather than Europeans for what they clearly did not do in the case of thousands killed. Jailing a G.I. might bring headlines and kudos; while storming into Bosnia to root out Serbian paramilitary killers in hiding earns little attention and much danger.

When there is anti-Semitic violence in France, Germany, or Austria, we in America do not really believe European courts either can or will stop it. Instead, government prosecutors will either ignore it, deny its existence, or advise Jews not to walk around publicly with any telltale sign that they are in fact Jewish. The real crime in Durban was not that the United States boycotted that arena of anti-Semitism, but rather that any Europeans at all attended the hate-filled conference.

We in the United States have this unpleasant suspicion that the record of European jurisprudence — more scrutiny and concern given to those caught on the battlefield and detained in Cuba than to the Sept. 11 terrorists who planned their murdering while roaming free in Europe — is both biased and opportunistic. Europe will go after a decrepit Pinochet when he flies thousands of miles from home in his dotage, but wait years to do much about a robust and dangerous Milosevic right next door who killed more in a month than Pinochet did in a lifetime. It will lecture the United States, which is a civilized and humane state, about everything from its death penalty to internment of prisoners of war, but say nothing about real murder that is a daily occurrence in China and much of the Arab world. It will remonstrate with Israel about morality when it seeks out murderers in Jenin, but remain mum about the real proof that Iraq and Saudi Arabia subsidize with cash bounties suicide-murdering, and that Mr. Arafat condones and at times abets it with German and French money.

After watching Black Hawk Down I could imagine a judicial circus in five or six years that would bring post facto indictments against scores of U.S. Rangers for reckless shooting, strafing, and bombing — with demands for reparations, apologies, and jail time each time the judges reviewed the videos. Panama would be a field day. And the recent mess in Afghanistan that saw charges that Americans bombed a “wedding” might subject all involved to lengthy proceedings at the Hague.

What the Europeans, in their well-intended efforts, have confused is war and peace. In war and its immediate aftermath, soldiers cannot be either prosecuting attorneys or juries who weigh evidence before shooting. Instead, they are mostly young men, often frightened and in a strange landscape, increasingly unsure who or what is the enemy. The United States Army with its long history of conflict realizes these difficulties and so has plenty of statutes to prosecute overzealous commanders and enlisted men who steal, rape, or murder — without need of help from either other nations or the United Nations. The Europeans know a great deal about law, but not so much recently about soldiers in battle; other countries in the world community know a lot about bloodletting, but very little about law. We should be worried about both in control of a court that adjudicates the fates of American soldiers sent abroad to keep peace.

The Europeans have more important security worries than errant American soldiers — such as terrorism and rising anti-Semitism. But if they are worried about issues of morality and law, they should look to their own immediate past and round up all the present legions of ex-communist officials and fellow-travelers still safe in their midst who just a few years ago brought misery and death to millions.