Arrest This: Against Belgium's self-righteous, illegitimate, kangaroo courts.

Once the war against Saddam Hussein reached a successful conclusion, the war against that war entered a new phase. Activists, asserting that the United States committed "war crimes" in Iraq, are even now in the process of initiating criminal prosecutions against American officials, including President George W. Bush and Gen. Tommy Franks, as well as British prime minister Tony Blair. These actions have been brought in Belgium and Switzerland; the Belgian government already has "referred" the Franks case to the U.S. Justice Department -- giving the U.S. an opportunity to punish its general lest the Belgian government do it for us.

This Belgian missive should be rejected and returned forthwith, along with a note politely explaining that the writ of Albert II, king of the Belgians, does not run on these shores -- and reminding his majesty's government that the U.S. has never taken kindly to such pretensions. An updated quote from Patrick Henry would be a nice touch: "Caesar had his Brutus, Charles I his Cromwell, and Albert II's ministers may profit by their example." To give this referral any other consideration would work to validate the profoundly flawed legal theory on which Belgium's actions are based.

Belgium's referral has been made under an assertion of "universal jurisdiction," and this is not the first time that Brussels has attempted to punish foreign leaders for what it defines as "international crimes." Under its "Law Concerning the Punishment of Serious Violations of International Humanitarian Law," Belgium's courts are even now considering allegations against as many as 30 foreign political leaders, including Israel's Ariel Sharon, as well as the first President Bush, Colin Powell, and Dick Cheney, on account of the 1991 Gulf War.

In 2000, a Belgian investigating magistrate actually issued an international arrest warrant against Congo's foreign minister, Abdoulaye Yerodia Ndombasi, alleging violations of the Geneva conventions and "crimes against humanity."

Whatever the substantive merits of Belgium's claims against Yerodia Ndombasi, its proceedings in that case can only be characterized as epic chutzpa -- considering its own sorry record of imperial brutality in what was, not so very long ago, the "Belgian" Congo. The claims were also legally unfounded, since, under international law, Belgium has no right to prosecute criminally offenses that did not take place in Belgium ("territorial" jurisdiction), were not perpetrated by Belgian nationals ("nationality" jurisdiction), did not victimize Belgian nationals ("passive personality" jurisdiction), and did not threaten Belgian national security ("protective" jurisdiction). In fact, Belgium's only claim of right to prosecute in this case was founded on the dubious doctrine of "universal" jurisdiction.

Not surprisingly, Congo rejected Belgium's claims, and challenged the arrest warrant before the International Court of Justice (ICJ). In February 2002, the ICJ ruled in Congo's favor -- although it never reached the fundamental question of Belgium's right to assert universal jurisdiction over foreign officials. Rather, it concluded that high- level government officials, such as a foreign minister, simply are immune from prosecutions by foreign judicial systems, noting that it was "unable to deduce from [the relevant state practice] under the well accepted rules of customary international law any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers of Foreign Affairs."

But if the question of universality is seriously examined, it quickly becomes evident that the Belgian, and other, universal-jurisdiction statutes also have no foundation in accepted international-law principles. There is, of course, plenty of support for universal- jurisdiction theories in the legal literature, and universality is the obvious goal of many activists and non-governmental organizations. However, law professors, commentators, and NGOs do not make international law -- sovereign states do, either by treaty or through long and consistent practice. Although the opinion of scholars may be some evidence of international law, only actual state practice that is widespread and consistent over lengthy periods of time can result in a binding norm. To justify the universal-jurisdiction claims of Belgium and Switzerland, not to mention those of their excited NGO supporters, there would have to be a long and well-established line of cases where the courts of one country have tried and punished the nationals of another, even though the prosecuting state has no connection to the offense other than its "international" character, and equally abundant precedent where the accused's home state has accepted the prosecution and punishment of its nationals -- including government officials -- for the sole reason that this is what international law requires. And this practice would have to exist for each and every "offense" over which jurisdiction is claimed -- which it does not.

Even in the area of piracy, where notions of a universal jurisdiction first developed, there are few instances where the international character of the offense was the only ground for jurisdiction over an individual case. Certainly in the Anglo-American experience, most such cases involve some other, far less controversial jurisdictional basis, i.e., either the accused or the victim(s) were nationals of the prosecuting state. Moreover, although there are a handful of cases in which American courts have referenced, recognized, or even purported to apply universal-jurisdiction principles, these cases rarely involve criminal prosecutions, and almost invariably reference the 1946 Nuremberg trials as the supporting state practice. Nuremberg, however, does not provide the necessary authority.

The "International Military Tribunal," which sat at Nuremberg and tried the surviving top Nazis, never claimed to exercise universal jurisdiction. In its written opinion, that court definitively based its authority on the rights of the victorious allies to legislate for a conquered Germany. The court expressly stated that it was established as "the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered; and the undoubted right of these countries to legislate for the occupied territories has been recognized by the civilized world."

In fact, there is only one notable case in which a (former) government official actually was tried criminally for international offenses on a universal-jurisdiction theory, and that was Israel's prosecution of Adolf Eichmann. Eichmann, of course, was the bureaucratic mastermind behind Hitler's Final Solution. He fled to South America, but was finally located and captured by Israeli agents in 1960. Since Israel did not exist when Eichmann's offenses took place, it could not assert jurisdiction based on territoriality, nationality, or state interest, and the Israeli Supreme Court relied upon universal jurisdiction to justify Eichmann's prosecution. However, even here, the court also suggested that some form of "passive personality" jurisdiction would have applied, since Eichmann's principal victims were Jews, even if not technically Israeli citizens. In any case, assuming that Eichmann's prosecution was an application of universal jurisdiction, a single case does not establish an international practice, let alone "make" customary international law.

State practice sufficient to support an international legal rule permitting universal jurisdiction to prosecute "international crimes" simply does not exist, and for good reason: Any such rule would undermine the principles of national sovereignty upon which the international system is based, and would shortly lead to international legal chaos. Despite the claims of activists and NGOs, there is no clear international consensus on what conduct actually constitutes "war crimes," "crimes against humanity," or even "genocide." Still less is there agreement on what constitutes "aggression," which even the drafters of the 1998 Rome Statute, establishing the new International Criminal Court (ICC), could not define. For example, although it is well established that deliberate attacks on civilians violate the laws of war, and that indiscriminate attacks on civilians or civilian objects are also criminal offenses, there is little or no agreement, in practice, on what is "indiscriminate." A number of NGOs, and even some states, consider U.S. "cluster" munitions to be inherently indiscriminate and their use, therefore, illegal. The U.S., of course, categorically rejects this claim -- as it has every right to do.

Each state, as an attribute of sovereignty, has the legal right to interpret and apply international norms for itself. Efforts by one state, through the prosecution of foreign officials, to impose its interpretation on others invite -- indeed, they virtually demand -- retaliation in kind. This, more than any other reason, is why there is no state practice supporting universal jurisdiction for violations of international humanitarian law: Such practice would long ago have reduced international relations to a series of tit-for-tat criminal prosecutions.

Unfortunately, that may be exactly the road the U.S. must now take -- at least in the short term -- in order to protect its citizens and its sovereignty. Belgium and other states that claim universal jurisdiction have thrown down the gauntlet, and the challenge must be accepted. International practice does not support their pretensions, but if prosecutions based on universalist theories are not opposed by the U.S., new international norms may, over time, be developed. This is especially true given the universalist aspirations of the ICC, which claims jurisdiction over the nationals of non-parties and has been ratified by 89 states.

The U.S. has a number of options that it should pursue vigorously. First, the administration should transmit formal and public diplomatic notes to both Belgium and Switzerland, making clear that the U.S. rejects their claims, and that it will view investigations or prosecutions of its nationals for alleged "offenses" in Iraq as unlawful, and as unfriendly acts. The initiation of criminal investigations against American civilian and military officials is a very serious matter, and cannot be handled, through private complaints and assurances, as a minor diplomatic faux pas.

Second, the administration should make clear to Belgium that its status as the home of NATO's principal command structures will be affected by its universal-jurisdiction law. If American officials cannot travel safely to and from Belgium, without the fear of groundless "war crimes" charges, then NATO headquarters must be relocated to a country that takes international law, and its international obligations, more seriously. In this regard, Belgium's recent efforts to ameliorate the impact of its universal-jurisdiction law, by permitting the Belgian government to "refer" cases to the accused's home state before taking action, does nothing to solve the problem. To accept such referrals would, in effect, be a recognition that Belgium has the legal right to investigate and prosecute in the first instance, when it does not.

Finally, the administration should introduce "blocking" legislation in the U.S. Congress. Such legislation would formally reject universality as an acceptable basis of international jurisdiction, and would permit the assertion of American criminal jurisdiction over individuals who attempt such prosecutions against U.S. nationals. Unlike universal- jurisdiction statutes, this law would have firm support in accepted international-law norms, since it would be based on acts undertaken against U.S. nationals (passive-personality jurisdiction) and against the U.S. government (protective jurisdiction).

Overall, the allegations brought against American officials reveal just how far bitter, ideologically driven activists are prepared to go to punish lawful policies with which they disagree. These charges also reveal how small states, with little or no responsibility for international peace and stability, have sought to manipulate international-law principles as a means of cutting a figure on the world stage. It is high time for the U.S. to begin redressing the balance. Although there are a number of measures that can be taken, the one thing the U.S. must not do is nothing.