I am uncomfortable with such prosecutions as these, not because the targets are American, but because we have not dealt effectively with the doctrine of "sovereign immunity" that, as the name denotes, immunizes leaders from legal action in the performace of their sovereign duties. I am not arguing that sovereign immunity is a good idea. I am also not arguing that the prosecution of Pinochet was not long in coming (his American enabler, Henry Kissinger, belongs in a dock right next to him, if anyone does). My point is that, as a matter of international law, we have not effectively defined the limits of sovereign immunity, nor have we created mechanisms that are recognized internationally for agreeing that these limits have been met. Even in cases of genocide, as the cases against Bosnian war criminals have shown, these issues are difficult to unravel.
I am not saying that the prosecution is unnecessary or unwarranted. I believe that such legal actions are necessary for better policing of the international community - much better than rendition and indefinite detention. I just feel that the international community, for a variety of reasons, has yet to come to terms with the limits, not just of the doctrine of sovereign immunity, but the limits of sovereignty itself. Until and unless we are willing to do so, such prosecutions will be seen as political, rather than legitimate exercises of legal authority.
Such, in fact, is the case here. Toward the end of the piece, Zagorin writes:
[I]t is the latest example of efforts in Western Europe by critics of U.S. tactics in the war on terror to call those involved to account in court.
U.S. officials has long feared that legal proceedings against "war criminals" could be used to settle political scores.
In other words, there is no exploration of the merits of the case, of whether or not, in fact, the German case was actually motivated by something other than politics, or that the actions of those under investigation, who include not just Rumsfeld, but Alberto Gonzalez, and former Deupty Attorney General John Yoo whose defense of torture has often reached, ahem, tortured extremes, could possibly meet the threshold of what constitutes a war crime under German law. Indeed, there seems to be little question that these officials either participated in, or directed, actions that, by most definitions, were indeed outside the boundaries of the conduct of warfare. That those who oppose them could be motivated by anything other than politics, however, is not a question for Mr. Zagorin.
Part of the reason for this is that there are no generally accepted standards for moving forward in a case such as this. Until and unless such criteria can become codified by treaty, or until the United States ratifies the treaty and becomes a member giving the ICC legal jurisdiction over the actions of Americans, I am afraid that, as much merit as the German case may have, it will never receive serious consideration by American officials, and I for one doubt whether or not Rumsfeld or any of the other possible soon-to-be defendants will ever see a day in court.
