History will record April 11, 2002, as a day of enormous significance in the effort to achieve the rule of law in the conduct of international affairs. It marks the day the Treaty of Rome, establishing an International Criminal Court, was to be ratified by sixty nations, thus triggering the establishment of the global tribunal with jurisdiction over those who commit war crimes, crimes against humanity or genocide. Tragically, instead of submitting the treaty to the Senate for ratification, George W. Bush would strike our name from the treaty altogether. In a press conference two weeks before the sixtieth nation deposited its ratification, the Administration's ambassador-at-large for war crimes, Pierre Prosper, made it clear that the President is still a hostage to the reactionary sponsors of the misnamed American Servicemembers Protection Act. This act would allow the United States to invade The Hague, presumed seat of the new tribunal, to "free" any American brought before the bar of international justice. In addition, any existing military assistance program to a non-NATO country that is "a party to" the ICC would be suspended.
The ambassador refused to deny that the idea of unsigning the treaty is under active consideration and review. Mere contemplation of such a course of action is bad enough, but active consideration at a time of war is almost beyond belief. We were isolated from virtually every democratic nation with our vote against the ICC on July 17, 1998, when the ICC treaty was adopted by a vote of 120 to 7. Since then it has been signed by our closest allies, including every NATO country but Turkey and all members of the European Union.
The twentieth century was the bloodiest in human history, with a total of 174 million people killed in genocide and mass murders. If there was ever a moment when a US President should demonstrate his fealty to the abiding principles of law and justice, now is that moment. No President has ever revoked the signature of a former chief executive on a treaty by unsigning it. If Bush carries out this unprecedented action, prodded by the right wing of his party, his capitulation will not only dismay our friends and delight our enemies but also strip us of any ability to negotiate changes to the treaty we might validly seek to make. And as we mute our response to the call for a worldwide embrace of the rule of law, we traduce one of the most important principles of American democracy.
First, the Arab League summit here in Beirut was chaos. Then it was the nearest to Arab unity that the Middle East has seen since the collapse of the Ottoman Empire. The chaos, of course, was predictable.
The trial in The Hague of the first state president indicted for genocide was to be the ultimate showdown. In the culmination of a fifty-year struggle by the human rights community against impunity, the firm weight of evidence and international law would be brought to bear on one of the world's most brutal dictators, Slobodan Milosevic. But the set-piece confrontation that began on February 12--a combined case covering three wars over ten years, which is expected to last more than two years--soon ran into problems.
By refusing legal counsel because he rejects the legitimacy of the court, Milosevic did more than insure the image of himself sitting alone against the world. He also gave himself license to thunder, without risking cross-examination, about the Balkan wars as a Western "Nazi" conspiracy to destroy socialist Yugoslavia. "This is a political trial that has nothing to do with the law," he declared.
For procedural reasons, the judges had the case run backward, starting with Kosovo and later taking up the earlier wars in Croatia and Bosnia. This allowed Milosevic to focus initially on the NATO bombing campaign--spending many hours in his opening speech listing civilians and civilian institutions hit (and including many horribly graphic photographs) and stressing his argument that Albanians fled Western bombs, not Serbian forces.
Milosevic played to public opinion, and much of Belgrade was delighted, with a local poll giving his performance high marks and his proud wife, Mira, beaming. If the tribunal hoped to break through Serbia's deep rejection of any responsibility for the wars and atrocities, the proceedings appeared to be having the opposite effect. "He has decided to work for the Serbian people and not for himself. He has broken the media lies produced about us," boasted one parliamentarian from Milosevic's Socialist Party.
Nor has Milosevic been totally alone outside Serbia. The International Committee to Defend Slobodan Milosevic, comprising activists, lawyers and intellectuals (including Harold Pinter and Ramsey Clark) has asserted that the "kangaroo court" with its "victor's justice" is illegitimate because the UN Security Council does not have explicit authority under Chapter VII of its charter to establish tribunals. Critics of the court also focused on small errors and confused witnesses in a prosecution case that began weakly. Some Albanians who took the stand seemed lost, failing to nail down the points sought by the prosecution or appearing overwhelmed by Milosevic's aggressive questioning.
The presiding judge, who sparred so fiercely with the defendant in preliminary proceedings, settled into a routine allowing him fairly wide latitude to cross-examine witnesses, only occasionally scolding, "That is enough, Mr. Milosevic." The schedule of the prosecution's case is constantly revised, as the defendant draws out lengthy (sometimes surprisingly well-prepared) cross-examinations stressing the violence of NATO, the Kosovo Liberation Army and even Al Qaeda against innocent Serbs.
It was easy to imagine Milosevic's performance sending quivers down spines at the US State Department and European foreign ministries as he threatened to call world leaders to the stand, highlight contradictions in the West's Balkans policy as well as civilian deaths caused by its actions, and plot the judicial free-for-all Western governments most fear. Bush Administration officials, appearing before the House Foreign Relations Committee on February 28, criticized delay and mismanagement at the tribunal and called for curtailing some investigations. The comments were delivered by Pierre-Richard Prosper, ambassador at large for war crimes issues, in the very hours when NATO forces were attempting, and failing, to arrest former Bosnian Serb leader Radovan Karadzic in Bosnia. (The Administration sees the arrest of Karadzic as key to its exit strategy for the Balkans and as a prerequisite for closure of the Hague tribunal on the former Yugoslavia by 2008.) Wire reports spoke of "abandoning" the UN system of tribunals and gave the impression that Prosper's view of international tribunals was not far from that of Milosevic himself. Indeed, Washington has been adamant in its rejection of the permanent International Criminal Court, and its position on prisoners from Afghanistan has raised concern in Europe over its commitment to international humanitarian law. Prosper subsequently traveled to The Hague to make more emollient, if less publicized, remarks. Whether the episode was purposefully contradictory, or a storm brewed by selective reporting, a message had been sent.
But for Milosevic, none of this matters. Playing to the media, cross-examining witnesses on tangential issues, making accusations against others (Washington, Sarajevo, Saudi Arabia) instead of addressing charges in the indictment, indeed rejecting the authority of the tribunal (while fully participating)--these are all classic defense strategies. They may influence some opinion in Belgrade and even internationally, but the only relevant audience in the tribunal's hybrid legal system is the panel of three judges who will examine the evidence against him.
Milosevic himself, in court, has several times confirmed a clear chain of military command within the Yugoslav forces. In the coming months, the prosecution can be expected to present senior witnesses from the Belgrade establishment who should go further to confirm a direct conspiracy from the top to commit crimes in Kosovo, particularly mass deportation. The Croatian and Bosnian cases are far more complex, taking place outside the territory over which Milosevic was the chief authority. But the prosecution has laid out detailed diagrams of control in what it calls a joint criminal enterprise, and by all accounts the legal teams on these cases are stronger. The record of Milosevic's responsibility for the wars in the Balkans over the past decade will be aired.
It nonetheless remains a concern that critics, both pro-Milosevic and anti-international law, will exploit the impossibility of anyone but those obsessively following the whole case (available live online at www.domovina.net) to make highly selective critiques. In doing so, they may raise their own profiles but will impede the justice and reconciliation in the region that is the underlying goal of the war crimes tribunal.
It's time for the UN Security Council to impose "externally directed separation."
The violent popular uprising in Argentina and abrupt collapse of its government should be understood as a warning bell, reminding the governing elites how unstable--and unjust--their system of globalization remains. Unfortunately, the Washington establishment prefers instead to dwell on its global war against terrorism. The Bush Administration's battlefield successes in that war, its diplomatic victories in the new trade round launched at Qatar and the House's narrow approval of fast-track negotiating authority for the President seemed to confirm America's self-image as benevolent steward of the world.
When Argentina exploded, it should have blown away the smugness, but instead we witness once again the supple forgetfulness that allows the globalist architects of the IMF and their cheerleaders to skip past obvious contradictions in their ideology. Argentina, one has to recall, was toasted not very long ago as the best case for "responsible leadership" in the developing world. Its regime included the requisite "Harvard-trained economist" as finance minister, who advanced the same austere measures that Washington demanded from the sinking Argentine economy: Squeeze the populace as harshly as necessary until capital accounts are balanced so foreign creditors may feel protected from devaluation or default (they are now likely to experience both).
The Argentines endured quite a lot--four years of recession, unemployment approaching 20 percent, shrinking incomes and public spending--until they swarmed screaming into the streets, looting supermarkets and battling police, with many casualties. Now, Eduardo Duhalde, Argentina's fifth president in two weeks, has lashed out, blaming US-backed free-market policies adopted in the 1990s for the country's collapse. "Argentina is bankrupt. Argentina is destroyed. This model destroyed everything," Duhalde said in his inaugural speech.
The central fallacy exposed by the ruination of Argentina-- and the many previous cases like Russia and Mexico--is the presumption that poor nations should accept the global system's commanding dictates, occasionally including massive suffering in the name of financial order, and in return the system will make them rich (or at least less poor). In Argentina's case, the straitjacket was sincerely accepted in the most extreme terms: Its currency was rigidly bound to the value of the American dollar. This commitment was widely praised by US economic thinkers, and it did stimulate US banks and investors to lend more generously. But it encouraged foreign lending to swell to impossible dimensions--$132 billion in Argentina's case--followed by the inevitable economic deterioration as the dollar soared and Argentine exports ceased to be competitive. The IMF prescribed its usual austerity remedy while lending billions more to cover the debt obligations--thus giving more time for the foreign debtors to be repaid before the inevitable default.
The story of Argentina is baffling, and deeply infuriating, because it is so familiar. Yet sensible reforms, like capital controls on the creditors and alternative economic strategies for developing nations, remain topics for learned papers and polite conferences, not for real action. There is an obvious explanation: IMF policy may ruin many borrowers, but it serves the creditors, who are able to evade the full consequences of their folly. Perhaps if many more nations follow Argentina down the road of debt default, the creditors will also see something wrong with the system and demand change.
It's proven useful of late in Afghanistan, but Annan shouldn't expect miracles.
As envisioned by the Administration, it's unilateralism with a multilateral face.
While the United States has spent the past few weeks imploring other countries to cooperate with our war on terrorism, behind the scenes it's apparently retaining an isolationist agenda. In a particularly ill-timed maneuver, the Administration on September 25 pledged to support the deceptively titled American Servicemembers Protection Act (ASPA), sponsored by Republicans Jesse Helms, Henry Hyde and Tom DeLay.
Although it has largely eluded public attention, ASPA is a slap in the face to the many allies that have spent years struggling to construct a legitimate vehicle for combating the most vicious war crimes, crimes against humanity and genocide. For ASPA not only prohibits all US cooperation with the International Criminal Court (ICC), it suspends military assistance to any non-NATO member (except certain allies like Israel, Japan and Egypt) that joins the court, rejects participation in any UN peacekeeping operations unless the Security Council exempts American soldiers from prosecution by the court and authorizes the President to use "all means necessary" to liberate Americans or allies held by the international tribunal (hence its European nickname, "The Hague Invasion Act").
Until now, the bill might have been dismissed as meaningless venting by a handful of extremists. But the Administration's support gives it a far more sober--and sinister--tone. The Administration signed on after negotiating changes that eliminate some of the original bill's thornier constitutional problems. (The President could now provide military assistance to a country that participates in the ICC if he deems it in the national interest, for example.) But those changes and Bush's support also make it far more likely that this public proclamation opposing an international effort to bring perpetrators of terrorism and genocide to justice will become law.
This obstruction is particularly ironic now, when the United States is insisting on world collaboration against terrorism. But it's also distressing because our government is a signatory to the 1998 Rome treaty that created the court. Although Clinton expressed reservations when he signed it, he at least committed the United States to work toward creating an international court it could support. Even if this Administration won't ratify the treaty in its current form, supporting a bill that undermines a treaty we've already signed and threatening the treaty's supporters is a remarkably underhanded maneuver, given the mask of international cooperation we're now strutting out on the world stage.
Sure, Jesse Helms labels it a "kangaroo court," but keep in mind what the International Criminal Court will be. Hammered out over more than five years by hundreds of international lawyers, scholars and diplomats, including many Americans, the court--which is expected to receive the necessary sixty ratifications by next summer--will be a permanent institution based in The Hague equipped to try, in addition to genocide and strictly defined war crimes, just the sort of crime against humanity we saw on September 11. Setting aside whether military action is justified to seize the perpetrators, if the court existed today it's possible we could have avoided the issue altogether. An international court holds a legitimacy in the eyes of the international community that a United States court cannot. Even a government like the Taliban might have a harder time refusing to turn over suspected terrorists to an international tribunal than to what it views as suspect US authorities.
Opponents claim the court would place American soldiers and officials at risk of frivolous political prosecutions. That ignores the many elaborate constraints written into the Rome statute. Moreover, the court will be controlled by our allies. Right now, we're aligned with countries like Iraq that oppose it. But all NATO members (except Turkey) have signed and most have ratified the treaty, as have most of the nations in the EU, which has announced its intent to ratify, calling it "an essential means of promoting respect for international humanitarian law and human rights." Recently, Great Britain--now our closest ally in the war against terrorism--became the forty-second country to ratify. (Switzerland is the latest to follow suit.)
Republicans have whipped up fears that the ICC is a rogue court that would prosecute Americans and deny them due process. But the treaty provides virtually all rights guaranteed by the US Constitution except a jury trial. Notably, the American Bar Association--always sensitive to such concerns and hardly a body of radicals--is a strong ICC supporter.
Given all the statute's safeguards, the only people truly threatened by the International Criminal Court are those who commit genocide, intentional large-scale war crimes or "widespread or systematic" crimes against humanity. The Administration's support for ASPA suggests it wants to raise American officials above international law. This is a bad time to be pressing that point, both on our allies and before our enemies. For if part of what sparks hostility toward the United States is our arrogance, then actively undermining this landmark step toward worldwide enforcement of the rule of law will only fuel it.
New types of violence are on the rise, and the only exit route is political.
Although it may appear that the aftershocks of September 11 have somewhat deposed the discourse of human rights and international law and replaced it with that of law and order, there is still a great deal to fight for. If anything, in fact, the new context makes it more urgent that there be solid rules of international criminal evidence and reliable institutions of international law. . . .The most vocal public opponent of the principles of "universal jurisdiction" is Henry Kissinger, who has a laughably self-interested chapter on the subject in his turgid new book Does America Need a Foreign Policy? (a volume, incidentally, that if it had any other merit might be considered as a candidate for title of the year). . . . It was utterly nauseating to see Kissinger re-enthroned as a pundit in the aftermath of September 11, talking his usual "windy, militant trash," to borrow Auden's phrase for it.