I’d like to preface this post by reminding you what the global “refugee context” is:
Lots of talk this week about the indictement of Sudan’s President, Omar Al Bashir. Journalists, analysts and bloggers are taking positions on this issue, and the terms of the debate seem to boil down to justice vs. peace. Indicting Bashir, it again signals the “end of impunity”, also diminishes the possibility of negotiated political settlement in which the “”””international community”””(many quotation marks intended) would play a significant role.
I am firm believer in the role of international law in guaranteeing respect for human rights and moving us towards something closer to global justice – in the long run. In the short run, however, it seems that political considerations (might I say imperatives?) need to be weighed appropriately when making highly charged legal decisions, such as indicting Bashir. Politically, the move hasn’t garnered the high level support it needs to succeed. Beyond this, it also is a critical move for the ICC – if the indictment is challenged by the judges, the consequences for the Office of the Prosecutor should be interesting…
There are hundreds of opinion pieces on this topic – this one, from the LA Times, takes the position that the indictment probably delays the possibility of peace in Darfur (and in Sudan at large). I thought this quote really captured the essence of the debate, and I’ll leave you with it:
“A harsh question: Is this [the indictment] about helping bring peace to Darfur or is it about furthering a political vision of the world, one based on human rights as the categorical political and, above all, moral imperative no matter what the real-world consequences?”(emphasis added)
Oh, the traps of idealism….
You know how sometimes you hear or read about something completely random or that you had never thought about before, and then, the next day, you see this concept/word/thing somewhere else, and you wonder: “coincidence…? I think not…”
A few weeks ago, while in Ghana, C. and I asked what a plant was, and we were told it was “water greens”, which is a variant of the famous potato greens. Now, having spent about 4 months there over the last year, we ate potato greens over and over, but never even heard of water greens. That afternoon, we saw a woman with a large bowl on her head, filled with – what we thought was – potato greens. When she started calling “water greeeeeens! wateeeeeeeer greeeens!”, we had the “coincidence” moment…
The point is that I was reading a fascinating investigative piece by Philippe Sands in Vanity Fair, about the way in which “extreme interrogation techniques” became a tactic in the American strategy in the War on Terror, and that it seems that everywhere I look these days, I’m reading about this topic (recently in the New Yorker). This strikes me, since it doesn’t seem particularly topical – perhaps it’s one of those “coincidence” moments. Getting to the point now, I promise.
Sands’ piece is enlightening, and shows exactly how these measures were decided on at the highest level of the administration:
The fingerprints of the most senior lawyers in the administration were all over the design and implementation of the abusive interrogation policies. Addington, Bybee, Gonzales, Haynes, and Yoo became, in effect, a torture team of lawyers, freeing the administration from the constraints of all international rules prohibiting abuse.
We have all heard the “trickle up” version of the story – a few bad apples, which took it upon themselves to commit some pretty serious abuse on prisoners. Not so, my friends. Not so. It’s extremely unfortunate, and, more importantly, worrying, that the administration managed to completely circumvent the Geneva Conventions. One of my last assignments in grad school was a presentation discussing breaches in jus in bello (laws of war) using the case study of the continued American presence in Iraq. During my research, I learned — much to my dismay — that the American administration had essentially managed to ignore its legal obligations, while pretending to uphold the system on the whole.
Douglas Feith , former Under Secretary of Defense for Policy, explains this quite well to Sands:
Douglas Feith had a long-standing intellectual interest in Geneva, and for many years had opposed legal protections for terrorists under international law. He referred me to an article he had written in 1985, in The National Interest, setting out his basic view. Geneva provided incentives to play by the rules; those who chose not to follow the rules, he argued, shouldn’t be allowed to rely on them, or else the whole Geneva structure would collapse. The only way to protect Geneva, in other words, was sometimes to limit its scope. To uphold Geneva’s protections, you might have to cast them aside[…]
How had the administration gone from a commitment to Geneva[…] to the president’s declaration that none of the detainees had any rights under Geneva? It all turns on what you mean by “promoting respect” for Geneva, Feith explained.
Geneva didn’t apply at all to al-Qaeda fighters, because they weren’t part of a state and therefore couldn’t claim rights under a treaty that was binding only on states. Geneva did apply to the Taliban, but by Geneva’s own terms Taliban fighters weren’t entitled to P.O.W. status, because they hadn’t worn uniforms or insignia. That would still leave the safety net provided by the rules reflected in Common Article 3— but detainees could not rely on this either, on the theory that its provisions applied only to “armed conflict not of an international character,” which the administration interpreted to mean civil war[…]
On February 7, 2002, President Bush signed a memorandum that turned Guantánamo into a Geneva-free zone. As a matter of policy, the detainees would be handled humanely, but only to the extent appropriate and consistent with military necessity. “The president said ‘humane treatment,’ ” Feith told me, inflecting the term sourly, “and I thought that was O.K. Perfectly fine phrase that needs to be fleshed out, but it’s a fine phrase—‘humane treatment.’ ” The Common Article 3 restrictions on torture or “outrages upon personal dignity” were gone.
“This year I was really a player,” Feith said, thinking back on 2002 and relishing the memory. I asked him whether, in the end, he was at all concerned that the Geneva decision might have diminished America’s moral authority. He was not. “The problem with moral authority,” he said, was “people who should know better, like yourself, siding with the assholes, to put it crudely.”
What really gets to me is the fact that a country such as the United States could entertain the thought that some people do not have rights (the Geneva Conventions are the one and only safeguard during a time of war – it is specifically meant to provide guidelines for the treatment of human beings in war, when human rights are ignored – that is the very nature of war) Contrarily to what I recently heard in a Ghanaian court of law – that rights “are not absolute” – I am absolutely convinced that every single individual is entitled to legal protection and due process, no matter what his crimes or background is. That is the very basis of equality and justice.
I find it so unfortunate that the United States, a nation that has (had?) the power to really positively influence the world, with progressive, enlightened and benevolent paradigms, has sunk to this level of disrespect for human rights.
Torture, which the Sands article is about, is a case in point. I just recently found out about Amnesty International’s Unsubscribe initiative:
Unsubscribe is a movement of people united against human rights abuses in the ‘war on terror’. Thousands of unsubscribers have now joined up. The threat of terrorism is real, but trampling over human rights and abandoning our values is not the answer. From Guantanamo Bay, Rendition, Torture and Waterboarding – we unsubscribe.
(warning – graphic images)
Someone recently pointed out that such behavior on the part of a government is inevitable in times of war – and they quickly reminded me about the French abuses during the war in Algeria in the 50-60s. But is it really inevitable? Besides the obvious moral and legal objections, in the long run, doesn’t this type of tactic weaken the overall strategy and the likelihood of a positive outcome?
Here is an interesting essay by Owen Fiss, a law professor at Yale. I tend to be an advocate of the International Criminal Court, particularly because it (theoretically) signals the end of impunity for perpetrators of atrocities. I find his basic argument, that the internationalization of prosecution is unnecessary because nations usually have the capacity and ability to deal with these issues through their own justice system, to be quite potent:
The crimes may have a global dimension—human rights, after all, are universal—yet national tribunals are capable of punishing persons for human rights violations under either ordinary criminal law or the same norms used by international tribunals[…]
Justice is also a political obligation, for it defines the foundational commitments of a given regime. The willingness of a regime to punish human rights abuses reveals—to its own citizens and to all the world—its true character.
I do believe that, in general, it is important to let States take responsibility. This is true in terms of post-conflict reconstruction, as it is true in terms of developing certain sectors of public services, such as health and education, where the intervention of foreigners can be detrimental to long term sustainability. Thierry Vircoulon has a great paper on this topic.
However, I’m not entirely convinced by the argument – if States chose not to prosecute these types of crimes (for mostly political reasons), or if the outcome is influenced by political considerations, then the whole process becomes a farce. As Fiss notes, the ICC only has African cases on its docket – even though plenty of crimes against humanity have been committed in other parts of the world, and not necessarily only in the context of civil wars… The ICC’s inability -thus far- to prosecute Western criminals of war (and they exist!) leads to the type of argument Fiss is making. This is precisely the same line of thinking that American detractors of the ICC use – that the US is able to prosecute and handle these cases within their own national jurisdiction, and that the ICC basically encroaches upon their sovereignty.
I would only agree with Fiss if it were the case that, left to their own devices, nation States would prosecute these crimes. He cites the case of Argentina,
In 1985, for example, leaders of the junta that ruled Argentina from 1976 to 1983 were convicted in Argentine courts under domestic criminal statutes for their roles in authorizing extrajudicial killings, torture, kidnapping, and other crimes.
But there are so many counter-examples for this – Iraq comes to mind. The circus that was Saddam Hussein’s trial and his brutal execution were an enormous shame – this could have been the opportunity for the ICC to show its worth. Also, the current debacle with the Cambodia trials for the Khmer Rouge also demonstrates how political considerations disturb these crucial legal proceedings.
Until the ICC becomes truly global in its reach – meaning that it doesn’t only prosecute African war criminals – it will continue to be criticized (and, I suppose, rightly so). But that is entirely dependent on the willingness of States to at least complement their own prosecution of these crimes with a parallel international mechanism (like Rwanda did with the gacaca, for instance).