International Herald Tribune

Thursday, July 30, 1998

AMERICA CAN'T BE OUTSIDE THE LAW

By William Plaff

Paris - Washington's opposition to the International Criminal Court established by the UN majority at a meeting in Rome this month reveals the confusion which prevails over America's proper role in the world.

The United States had originally urged that this court be created. But by the time the United Nations' members arrived in Rome to debate the court, it had changed its mind, under heavy pressure from the Pentagon, which President Bill Clinton fears to challenge.

The new position was that America would support the court only if America were exempt from its jurisdiction.

Not only was Washington overwhelmingly defeated, but the court, as created, will have jurisdiction over America if they are charged with war crimes in a country which has signed the treaty.

The U.S. position in Rome has split the policy community, Congress and American opinion. The Washington Post approves the administration's policy. The New York Times calls it "shameful."

The case made by the administration is that because the United State is the sole superpower, which others expect to uphold international order, it may find it necessary to violate international law - in the line of duty, so to speak. It therefore might find its itself, or its soldiers, accused of war crimes, perhaps frivolously or mischievously.

If the United States is to be the world's policeman, the argument says, it must be exempted from being held accountable to the law. This is defended as realistic, given the way the world works.

If the United States stops being the policeman, the argument goes on, the world will be sorry, because no other nation is qualified to play the role or would be trusted to do so. As Joshua Muravchik of the American Enterprise Institute writes, "everyone knows" the United States is a "righteous nation."

The argument is obviously fallacious as well as fatuous. It says that Washington should be allowed to act as an international vigilant, and be trusted because of its self-evident virtue.

If one looks at the past, there is no reason to make this argument. The United States has not in the past had to break the law to uphold international order. All of the U.S. armed interventions since World War II which have been recognized

by the international community as in the general interest, from the Korean War through the Gulf War to the intervention in Bosnia, have respected international law.

The occasions when the United States broke international law were in pursuit of narrow U.S. interests, or arose from American conception of Cold War imperatives that even most U.S. allies refused to accept. These included the invasion of Cambodia and the secret war waged in Laos (both ancillary to the Vietnam War), as well as an unhappily long list of military interventions in the Caribbean and Central America, and some CIA strong-arm work elsewhere.

This is what presents the problem. Under the Rome treaty it is imaginable that Richard Nixon and Henry Kissinger could have been charged with the war crime of international aggression. Intervention in Panama and Grenada might have led to similar charges against U.S. leaders.

Yet Americans would feel better about themselves today had the United States never invaded Cambodia. The Panama and Grenada episodes are national embarrassments. The record shows that the country would have been better off respecting international law.

None of its past acts of vigilantism produced any useful long-term result.

One might say that Washington's arguments are wholly cynical. I do not think so. Xenophobia is involved, as in Senator Jesse Helms's opposition to the court. But a good many people, particularly in the military, have been convinced by a certain style of "tough-minded" political advocacy that in the "real" world, respect for international law is weakness.

That leads to the claim that breaking the law is essential to advancing the rule of law, and to the notion that the members of the United Nations should name the United states as the one nation not subject to international law.

This is indefensible and absurd, as serious people in Washington surely see.

The affair has actually undermined Washington's claim to defend world order and lead the world community. It has made it the tacit advocate of illegality and vigilantism.

International Herald Tribune.

Los Angeles Times Syndicate.