International Justice’s Prodigal Parent
Recent reports of international law violations by the United States- including the Abu Ghraib photographs, accounts of mistreatment at Guantanamo Bay and the Red Cross revelation of “ghost detainees” found on the FBI’s terrorist arrest list but not in any legal facility- do not alter the fact that America’s past contributions to international criminal justice exceed those of any other country. But these violations do beg a question: after investing so much in institutions that worked and that raised our international status, from Nuremberg to the Convention Against Torture to today’s International Criminal Tribunals, why are we now undermining the very foundations of international law?
The question was raised earlier this summer in Salzburg, Austria, where Brandeis University brought together judges from international courts, many of them engaged in applying the rule of law to the worst atrocities of our time in Serbia and Kosovo, Rwanda and Sierra Leone. The meeting took stock of the last decade’s historic achievements in international justice- murderers and rapists who would have gone free in other decades are now confronting their deeds and their victims in court, and facing hard time in prison afterwards. As I listened to the judges speak, I struggled to reconcile my pride in America’s past contributions to international justice with our current attacks on institutions and fundamental principles accepted by most of the rest of the world.
American leadership was indispensable to almost every major advance in international criminal law over the last century. We insisted on judging Hitler’s henchmen according to law in open court, when some of our allies preferred summary executions. We spearheaded the creation of the courts that pursue Yugoslavia’s ethnic cleansers and Rwanda’s genocidaires. Our decisive pushes- diplomatic and financial- at critical moments made the International Criminal Court (ICC) possible. The ICC will soon become the keystone of international justice, punishing the authors of the worst atrocities, and preventing much more suffering by promising would-be tyrants a day in court. Along the way, our lawyers honed many of the crucial legal principles, especially those that allow prosecutors to follow the chain of command up to the leadership that orders or incites others to kill and torture.
In Salzburg, this laudable history kept colliding with the present use of America’s legal acumen and international power to reverse these very achievements. The Abu Ghraib photos shock, but the White House memos, written by the government’s top legal minds to evade American and international laws against torture, disturb more deeply. The Administration’s claim in open court that Guantanamo Bay is a law-free zone, beyond the reach of any court is even worse, for being more brazen. These incidents follow a pattern set over the last three years that includes the Administration’s repudiation of the ICC Treaty we helped create, and applying intense pressure on our allies to exempt Americans from that Court’s jurisdiction.
The pendulum may be shifting. One Salzburg morning was brightened by the announcement of two Supreme Court opinions, Rasul v. Bush and Hamdi v. Rumsfeld, that re-asserted that the Executive Branch is not above or beyond the law, even in wartime and even at overseas military bases. In June, Senate Democrats and Republicans voted to affirm “that the United States may not engage in torture or cruel, inhuman or degrading treatment or punishment,” and that the Geneva Conventions remain part of U.S. law. The American public’s outrage at the Abu Ghraib photographs demonstrated that torture was never the policy of we the people.
We still have a long way to go to reclaim our place at the vanguard of international justice. That the Supreme Court and Senate needed to confirm such bedrock principles as the Geneva Conventions and judicial review of detentions may show just how far.
The House of Representatives should take a big step in the right direction by endorsing the Senate’s resolve that America will not torture. The Executive Branch should close all clandestine detention centers immediately, and respect detainees’ rights under national and international law without the courts forcing it to. We should join most of the developed world -including Iraq War allies Britain and Spain- in ratifying the ICC treaty. Finally, the Abu Ghraib investigation should use the legal tools pioneered by American lawyers to follow the chain of responsibility as high as it goes, rather than merely making an example of a few enlisted soldiers. In the words of the 9-11 Commission, “we should offer an example of moral leadership in the world,” thereby making the planet safer for everyone but the criminals.
Brian Concannon Jr. was a Guest Faculty member for the 2004 Brandeis Institute for International Judges in Salzburg, Austria, and directs the Institute for Justice and Democracy in Haiti (www.ijdh.org)
By Brian Concannon Jr.
Published in Business Day (South Africa) August 12, 2004 and
The Vanguard (Nigeria) August 6, 2004