International Law and 'Victor's Justice'

The Torture Council will Listen to His Master's Voice

Almost from the moment of the signing of the Geneva Conventions in 1863 there has been a problem with enforcement, and people have accused various international tribunals of victor's justice. This is remedied within nations by an independent judiciary. People who have been following the recent Emergency and elections in Pakistan are aware of how centrally important this can be to a nation, people who were aware of the transitions leading to the end of the Soviet Union were aware of the efforts made there, which were thwarted in large part by its sudden collapse. In the case of international law, an independent judiciary is embodied by the establishment of a permanent, independent, international criminal court.

Henri Dunant and Gustav Moyner, the convenors of the original Geneva conventions and the founders of the Red Cross, were not unaware of this problem. Christopher Keith Hall documents that although Moyner was originally opposed to such a court, by 1872, with the outbreak of the Franco-Prussian War, he understood its need, and wrote a document outlining how he thought it should be constructed. In essence, it prevents both an inability to enforce international law, and accusations of victor's justice.

These problems often lead American lawyers to downgrade the importance of international law. You can find discussions to that effect lacing the current online talk about the recent Torture Memo and Torture Council (how else can you describe Condi Rice's NSC principals meetings?) disclosures, for instance, here but should they? The court exists, it was created by the Rome Statute, and has more than a little international adherence. It is also true that the United States has a schizophrenic attitude towards its authority, and this is quite possibly an entry point for it to have an effect on American lawmakers.

In a well known move, the Bush administration withdrew from the ICC on May 6, 2002. To put this in perspective, the papers are currently talking about the torture memo, requested by William J. Haynes, and written by John Yoo in March 2003. The principals meetings, as exposed by ABC News last night, were convened after Abu Zubaydah proved uncooperative, he was captured in March, 2002. There is a Bybee memo signed August 1, 2002 that delineates techniques that may be "cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity to fall within Section 2340A's proscription against torture." Section 2340 is the implementation of the Convention Against Torture, known as the Torture Act. And there is a Yoo/Delahunty memo and a Bybee memo, both from January 2002, arguing against providing prisoners in Afghanistan the protections of the Geneva Conventions, including the common Article 3 protections (see here, p. 10). Given the timeline in the ABC piece, it is likely the Torture Council met after August 1, but who knows? Obviously ending support for Geneva began on or before January 9, less than 4 months after September 11, 2001. Support for Geneva is even worse since the passage of the Military Commissions Act of 2006, which forbids courts in the U.S. from using it as a legal authority.

That makes it pretty definitive, no? But wait! Charles Taylor of Liberia was remanded to the ICC by the request of the United Nations Security Council on March 30, 2006. The United States is trying those few Guantanamo prisoners that it is bothering to bring to trial charging them with war crimes, that is, violations of international law. The United States similarly disparages the United Nations, most famously when John Bolton implied he wouldn't be adverse to destroying the place, but used U.N. Security Council resolutions as its justification for invading Iraq. It would be a mistake to believe that the members of the Torture Council, or their boss, don't care about opinions from the ICC. Even if they don't, other nations do. 195 countries are required to apprehend those accused of war crimes. It only takes one per criminal.

And following the logic I wrote about earlier, the MCA itself is, in many respects, a violation of international law, since it attempts to change our ratification status, and since it attempts to confer immunity on torturers, and it attempts to restrict the applicability of common Article 3. Beyond that, everyone is quoting Phillippe Sands at the same time they talk of the inapplicability of international law, because they all know about the 'tap on the shoulder', as he put it. He (actually a prosecutor he interviewed) mentioned a trip wire being touched by the passage of the MCA. The trip wire in question is in the Rome Statute. It's the condition that allows the International Criminal Court to intervene: evidence that the home country will not prosecute.

International humanitarian law obviously matters a great deal to those that violate it. It would therefore likewise be a mistake to believe that the United States Congress would ignore an opinion from the ICC, especially if they found themselves implicated. History would not judge them kindly, either.

Update:

The Associated Press has now corroborated the ABC News story on the NSC Principals meetings. It is interesting that, in interviewing the "former senior intelligence official" the timeline shifts backwards a bit. I had surmised that the meetings came after the Bybee memo of August 1. Zubaydah was captured in March. The official is quoted by AP as follows: "If you looked at the timing of the meetings and the memos you'd see a correlation," the former intelligence official said. Those who attended the dozens of meetings agreed that "there'd need to be a legal opinion on the legality of these tactics" before using them on al-Qaida detainees, the former official said. That certainly looks like evidence of meetings about techniques in advance of a legal basis for the CIA, which was provided in the August 1 memo. We're moving back towards March 29, 2002. Perhaps we'll move further.