The Bush Administration came under scathing criticism for the withdrawal from the treaty. Its critics saw the oppostion to the ICC as further evidence of the unilateral approach of the Administration to foreign policy, because the action put the U.S. at odds with Canada and the European Union, which supported the ICC. American concerns over the potential for war crimes prosecutions of its soldiers and diplomats was dismissed as overblown and farfetched.
As time passes, the wisdom of President George W. Bush's policy seems more and more apparent, as terrorists and despotic regimes now commonly file war crimes allegations in the European Union courts against the defenders of democratic States.
In the latest outrage, as reported in the Jerusalem Post, a Spanish judge has launched a war crimes investigation into the 2002 killing by Israel of a top Hamas terrorist leader, Salah Shehadeh. Israel killed Shehadeh in a Gaza bombing that took 14 other lives. The targets of the probe include seven former top Israeli military and security officials, including Public Security Minister Avi Dichter, who at the time was head of Shin Bet, the Israel Security Agency.
Israeli Defense Minister Ehud Barak blasted the decision of the Spanish judge, Fernando Andreu, saying, "Someone who calls the assassination of a terrorist a crime against humanity lives in an upside-down world."
Dichter told the Jerusalem Post:
"Shehadeh was responsible for the murder of dozens of Israelis. We pursued him for a long time. The man was a terrorist responsible for dozens of attacks against Israeli civilians. He knew we were pursuing him and went from multi-story building to multi-story building. On the day of the assassination, he was in the building with his wife, who aided him, and was killed in the strike.
"To my sorrow, innocent people were harmed in the strike, and I do regret that."
Spain has utterly no connection with the Shehadeh assassination. Neither Shehadeh, nor the other casualties, nor the alleged perpetrators are Spanish. The killing occurred in Gaza. But traditional notions of jurisdiction are completely foreign to the new international war crimes jurisprudence. The Spanish judge is acting under a doctrine that allows prosecution in Spain of such an offense or crimes like terrorism or genocide, even if they are alleged to have been committed in another country. Moreover, under European Union law, should the Spanish judge choose to issue an international arrest warrant for any of the Israelis in question, they could be arrested upon arrival in any European Union member state.
For Dichter, this is deja vu all over again. In late 2007, he canceled a trip to England out of concern that he could be arrested on similar charges, and a Palestinian organization filed a civil suit against him in the United States in 2005. That suit was thrown out by the court in 2007, but according to a senior member of Dichter's staff, the decision has recently been appealed.
"The administration is putting itself on the wrong side of history," said Kenneth Roth, director of Human Rights Watch, back in May 2002, speaking of President George W. Bush's decision to withdraw from the ICC treaty. "Unsigning the treaty will not stop the court. It will only throw the United States into opposition against the most important new institution for enforcing human rights in 50 years," he said.
To the contrary, it is Bush critics such as Mr. Roth who were on the wrong side of history, as well as dangerously naive. The ICC and the courts of the European Union instead are becoming the most important new institution for abusing human rights, and protecting terrorists such as the leaders of Hamas.
One hopes and prays that President Barack Obama will resist the lure of the politically correct, and adhere to the Bush Administration policy. Just last week, U.S. predator drones launched a missile attack against Al Qaeda leaders that apparently took civilian lives, an action that is virtually identical to the alleged "war crimes" of the Israeli military and security leaders. It is hardly farfetched to imagine that President Obama might someday himself in the dock of an international criminal court, if the U.S. does not vigorously oppose the assertion of jurisdiction by such tribunals.