WANTED:
For Crimes Against Humanity

No War Criminals Here, Only Patriots

The International Criminal Court (ICC) is one of the many international institutions about which the vast majority of Americans are willfully ignorant. Those conservatives who bother to think about such things have always hated even the idea of such a court, railing against it as just another example of European, fuzzy-headed idealism run amok. Liberals don't usually have much to say about it one way or another, except on the occasion when its indictments happen to reach out and touch someone rather prominent on the shoulder, like the sitting president of Sudan or the former ruler of war-time Bosnia. Even then, most of our fellow countrymen consider the court the way they consider most foreign matters: as something distant and irrelevant and to be avoided if at all possible. By all means, lock up those miserable war criminals and dictators if you can catch them, but please don't bother us with any details.

Our pervasive indifference about the ICC may not long survive the news that several former denizens of the Bush Administration, including some of the most despicable characters who have served in our government in modern times, are being investigated for possible war crimes charges. It would seem that the ICC has been paying attention to all of those stories about Guantánamo Bay, extraordinary renditions and secret CIA prisons. All of those paper patriots who couldn't get themselves worked up about the threat to our civil liberties that was posed by years of warrantless surveillance, arbitrary suspensions of habeas corpus and the unapologetic use of "enhanced interrogation techniques", are no doubt whipping themselves into a frenzy now about the prospect of several prominent neocon acolytes of the recently departed president and vice-president being indicted as war criminals. They can comfort themselves if they like by proclaiming, loudly, that these charges are being overblown by the liberal media elite (whoever they are — as Helen Thomas recently said, "I wish I could find another liberal around here"). But the fact of the matter is that these devoted public servants — Alberto Gonzalez, Douglas Feith, David Addington, William Haynes, Jay Bybee and John Yoo — left a paper trail a mile long, much of which is now in the hands of an administration that is ideologically opposed to just about everything they professed to believe in. Like all regimes that become deeply enamored of their own power, they were so sure that what they were doing was right that they didn't even bother to conceal their contempt for the Constitution they were sworn to uphold. Now they stand a very good chance of being hoist on their own petard.

[One of W's most irritating, oft-repeated post-9/11 statements was that he had sworn an oath "to protect the American people." In point of fact, the President of the United States is sworn only to protect the Constitution. It is a trivial point of civics that, if understood by the last incumbent and his cronies, could have saved the nation a great deal of trouble and embarrassment.]

American administrations have been consistently opposed to submitting American government officials and military personnel to the jurisdiction of international bodies of any kind, even ones of which the United States is a participant. Why an American who is guilty of war crimes should receive special dispensation compared to, say, a Serbian one, is officially explained as a consequence of America being the lone superpower. You see, America is such a force for good in the world that its soldiers and diplomats alike cannot function in foreign lands without special protection. It's sort of like an enormous corporation insisting on immunity from civil lawsuits on the grounds that it's more likely to be sued because it's bigger than everyone else. It is also an affront to the myth of "American exceptionalism" to even suggest that any American is capable of committing war crimes or other atrocities. Our illustrious and ever-growing roster of civilian mass murderers notwithstanding, Americans are just incapable of that kind of violence. Being subject to the whims of international troublemakers who are simply jealous of our strength and our way of life would just be unfair.

A Different World

I happened to be visiting friends in London in the late 1990s during the time when Augusto Pinochet, Chile's former thug-in-chief, was under house arrest there. His detention was the the result of the bravery of one Spanish judge, Baltasar Garzón, and supported by the conviction of the Spanish government that nations are actually bound to enforce the provisions of the treaties they sign to protect human rights around the world. Pinochet's eventual release, after nearly a year and half of judicial bickering, was the result of the cowardice of Britain's Home Secretary, Jack Straw, who decided that the ex-dictator's alleged ill-health rendered him unable to stand trial for the thousands of cases of torture and murder for which he was believed responsible.

The debate among our British friends and acquaintances largely followed political lines that would not be unfamiliar to Americans. Predictably, those of a more Thatcherite bent thought the arrest of Pinochet an embarrassment for Britain. Moreover, they felt that bringing criminal action against world leaders would hamper governments in the future from vigorously pursuing their national security interests. Those of a more Laborite persuasion were proud that their country was prominently at the center of this storm, and were only ashamed of Straw's subsequent display of moral timidity.

When I first heard of the arrest of Pinochet, I felt something akin to elation. The late 1980s and 1990s were remarkable for the many opportunities to indulge in such feelings. A similar sensation of relief and vindication accompanied the collapse of the Berlin Wall in 1989 and, with it, the entire edifice of Soviet communism. The release of Nelson Mandela from prison the following year also aroused such feelings. In each of these and a number of other events of liberation, I had nothing personal to gain except the joyous realization that it was actually possible for a world long dominated by oppressive regimes to yield to something better.

The Pinochet case was in a way even more important. This was much more than just a grievance against a particular strongman whose deeds were, in many ways, no worse than those of thousands of emperors, kings and chieftains who came before him. His arrest represented a radical new way of thinking about a previously insurmountable human problem: how to bring sadistic tyrants to justice. After thousands of years in which there was an effective immunity for dictators, an immunity enforced by the practical impossibility of actually capturing a foreign leader (except, rarely, at the terminus of a military conquest), there was suddenly a confluence of events that exposed the vulnerability of even the most deeply entrenched despots. First, 20th-century war crimes trials had set a precedent for a range of international agreements calling for the prosecution of war criminals and other abusers of human rights, most notably the establishment of the ICC. Second, the disappearance of the bipolar structure of the Cold War had robbed many tinpot dictators — Marcos, Ceaucescu, Suharto, Hoxha and many lesser lights — of the backing of their superpower sponsors, thus eliminating one of the primary impediments to enforcing those agreements. Third, global travel began to expose even the most tightly guarded heads of state to the threat of apprehension and arrest. And finally, professional judges and prosecutors were now willing to call for justice in a way that only lone human rights campaigners and journalists were previously courageous enough to do.

Before America's domestic apologists start frothing at the mouth at the idea that foreigners might sit in judgment of our citizens, they should consider that the post-WWII trials of military and civilian leaders in Germany and Japan were conducted — successfully — by none other than the United States. If you need a more recent example, the U.S. led the NATO bombing of Serbia a decade ago to protect the people of Kosovo from suffering the same fate as their Bosnian neighbors. In so doing, we were not merely defending a vulnerable population but standing up for a crucial principle: that a government surrenders the rights of a sovereign nation when its turns its military might against its own civilians. The very same principle that led to the prosecution of Slobodan Milosevic and, currently, Radovan Karadzic — arrests and prosecutions that were both actively supported by the United States — was applied as well in the recent indictment of Sudan's president, Omar al-Bashir, for his role in the genocide in Darfur. Do we have the moral courage to believe in these principles regardless of where they lead us, or do we believe only in upholding rules we can defend at the point of a gun or a guided missile? Arguing against the right of other nations to stand in judgment of the crimes of our leaders or soldiers only gives credence to the standard argument of our detractors: that war-crimes trials are nothing more than "victor's justice". Either we believe in justice or we don't. If we want to stand aside and take no part as the rest of the world develops standards of law under the ICC, then we have no one to blame but ourselves when that law turns out not to be to our liking. But we have no moral or legal right to say that we deserve to be held to some different standard. Our Constitution was written by men who wished to establish in this country a set of principles by which humanity can govern itself and be free of the arbitrary exercise of power that characterized nearly all of recorded human history up to that time. We should be proud that these ideals are now shared by so many nations, including nearly all of those fuzzy-headed Europeans whose old-world order our forefathers rebelled against at the risk of their lives. We should be pleased that the world has learned from our example and has the wherewithal to bring brutal dictators to justice. It's not an easy task, and it's not pretty, but without our example and our support it's much more difficult. If a few of our own bad apples get caught in the net, then so be it. We are a nation of laws. Or so we used to say.

April 9, 2009