But principle is everything!

I jest, of course; principle often bends to reality. And I’m actually really sympathetic to James’s larger point , specifically

If some bunch of idiots (this is not a derogatory pun directed at my bloggy colleague) puts American officials on international trial, international law will crack. And if that happens, Europeans and Americans lose, and autocrats and anti-democrats everywhere win.

First of all, allow me to say that I appreciate the collegiality within the parens. Secondly, I totally agree that if Americans are put on trial for war crimes, the system will crack. Thirdly, I totally agree that this, in the general, is a bad thing. There is something else we need to consider, though: structurally speaking, a standing body/statute charged with prosecuting “war crimes” or “crimes against humanity” is prone to abuse. That’s the point I was trying to get at previously, though I (obviously) did a poor job of it.

And that’s my entire problem with “international law” as it is being discussed in this case. I think we can all agree that prosecuting leaders who preside over genocide is both just and important. Having a sword to hang over the head of a maniacal autocrat is handy. But if you give the ability to pursue charges of war crimes to every crank with prosecutorial power on the European continent, you’re going to end up with abuses of the system, especially at a time when Europe is trying to reassert its role on the international stage. Add in an unpopular president and an unpopular war, and you’ve got a recipe for disaster.

If you can’t tell, I’m very, very ambivalent about this “system.” I don’t think its destruction would spell doom for international law in principle–ad hoc tribunals have worked pretty well so far over the last 60 years. That being said, I definitely agree with James that we’d all be better off if the Europeans would simply get off their high horse and let us do our thing. America isn’t a tinpot dictatorship; if our guys have committed war crimes, we have a method of prosecuting them for it. And people have been prosecuted for them, albeit mostly in a military setting. If push comes to shove, I’m going to back American freedom of action over the European conception of international law–up to an including doing whatever it takes to recover any of our people put on trial for having committed “war crimes.”