One Rule for Everybody Else, and Another Rule for US

Shortly after President Clinton left office, he gave a series of lectures around the world to augment his obviously meagre income. One of those lectures was given at the Albert Hall in London, which was full for the occasion, and as it was regarded as a corporate entertainment event I was invited along courtesy of a vendor.

Clinton was as entertaining and charismatic as one would expect. He gave a long, energetic and interesting talk, and then at the end - as he waited for questions from the audience - he offered up a kick-off question to himself, which was ‘what was your biggest mistake while in office?’

We all laughed, as we were supposed to, expecting the answer to be something to do with Monica Lewinsky, but it wasn’t - he said the biggest error he made whilst President was to maintain the previous US position in the side-lining and marginalisation of the United Nations.

The UN: A Flawed Albeit Essential International Body

As far as the Americans are concerned, the UN (an international organisation founded in the ashes of World War II in 1945 after 51 countries committed to maintaining international peace and security) has been a broken and corrupt organisation since the Cold War. As a result it has been labelled as ‘dysfunctional, partisan and anti-American’ and largely side-lined ever since – even though it is situated in New York, and even though it was primarily the brainchild of then-President of the United States.

I can sympathise with some of their – more cogently argued – criticisms of the UN; however (and it is an enormous ‘however’) we have to bear in mind that it is the only comprehensive world-wide representative governmental organisation at our disposal. Rumours have abounded over the last two years that Russia and China are thinking of setting up a rival ‘UN’, and seducing like-minded countries way from the existing one; but what is the most productive situation; improving the existing institution that claims to represent all the world’s countries, or having two such organisations and splitting the world’s government votes?

So, to any sensible bystander, we are stuck with this one, and the right thing to do, surely, is to keep trying to make it work better – not ignore it and further emasculate its authority, as has been achieved by each successive US president (despite Clinton’s mea culpa).

The Similar Case of the International Criminal Court

Another global institution that is badly required, but which is far from perfect, and is in desperate need of increased efficacy and efficiency, is the International Criminal Court (ICC).

Post-WWII precedent

The ICC is a descendant of the Nuremberg International Military Tribunal (IMT), which was born out of the ambitions of the same American president that conceived the UN, Franklin D Roosevelt to legally try, and punish accordingly, those suspected of war crimes and inhumane acts during the Second World War.

Halfway through the Second World War Winston Churchill was of the view that the guilty parties of the German government and army should simply be put up against the wall and shot at the end of hostilities. It was the images of Mussolini and his mistress hanging upside down from a lamppost in a petrol station in Italy with their clothes in disarray that changed his mind. Churchill eventually succumbed to the view that no matter what these people had done they should be afforded a decent trial and not be dispatched in the same inhumane way that they had treated others.

Following a resulting series of discussions at Tehran, Yalta and Potsdam with Roosevelt, Winston Churchill and Josef Stalin, it was agreed that when hostilities ceased they would set up an international military tribunal. This would consist of judges from the key allied nations – the United States, the United Kingdom, France and Russia – and would give the Allies the opportunity to: demonstrate what the axis powers had done; to deliberate on it in cold blood; and to mete out justice accordingly, thus giving effect to the rule of law on an international basis. The tribunal would symbolically be held at Nuremberg, the Bavarian city that spawned the rise of the Third Reich by hosting massive Nazi Party propaganda rallies in the 1920s and 1930s.

The opening address of the US Prosecutor Robert H Jackson shows the high-vaulted ambition and justification for the IMT, and still brings goose bumps to my arms:

“The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.

This Tribunal, while it is novel and experimental, is not the product of abstract speculations nor is it created to vindicate legalistic theories. This inquest represents the practical effort of four of the most mighty of nations, with the support of 17 more, to utilize international law to meet the greatest menace of our times-aggressive war. The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which. leave no home in the world untouched.”

This first series of war crimes trials went fairly well, and were regarded as being a practical and humanitarian way of going through the necessary process of setting out the tragic events and determining responsibility and punishment. Interest waned during the second round of trials for the more junior defendants, doctors and lawyers etc, as the looming Cold War side-lined the attention of politicians and the public. As a result, the full gamut of trials that had been originally contemplated were never concluded.

Concurrently, there was an Asian war crime tribunal which was targeted at the behaviour of the Japanese army and politicians. However, there was a wholesale failure there in persuading the judges on that tribunal to ‘toe the line’. For example, the Indian judge, Justice Radhabinod Pal, argued that the exclusion of Western colonialism and the atomic bombings of Hiroshima and Nagasaki from the list of crimes, and the lack of judges from the vanquished nations on the bench, signified the "failure of the Tribunal to provide anything other than the opportunity for the victors to retaliate".

There were also criticisms of a more general nature, especially among professional 'juris-prudes' – both then and since – that the whole enterprise reeked of ‘victor’s justice’ and retrospective criminalisation, and that as a result the process was unfounded and wrong-headed. Whilst there is clearly some foundation in these is arguments, critics have never been able to justify doing nothing about war crimes, or holding no-one there to account for such egregiously inhuman acts on such a global scale.

In Europe however, despite the criticisms, the establishment of the war crimes tribunal was regarded as having been a success and was regarded as having been the ‘right thing to do’. Furthermore, it was generally accepted by legal academics and international law practitioners as having established in international law the precedent that similarly inhumane acts carried out by government, institutions or individuals of one nation were fairly justiciable by a tribunal consisting of a federation of other nations.

Assuredly, there was a time in pre-history – before legislation or other defined norms – that people were being held responsible and punished for things that were hitherto not closely defined, but on which there was general agreement in society that they were ‘wrong’. On that very basis, the English Common Law came into existence, and has been refined over the years since. An accused murderer in England is still arraigned in court with the words “charged with murder, contrary to common law”. There is no statute.

Nuremberg is no more than an example of exactly that, but on a supra-national basis, and can be justified on the same basis as emerging international ‘common’ law.

The ICC, based in the Hague, is the successor organisation of the IMT at Nuremburg, and was inaugurated for the same reasons – to provide a permanent body through which to bring perpetrators of crimes against humanity to justice; both as an organ of punishment, and as a deterrent to would-be perpetrators of such acts.

Birth of the ICC

In 1948 it was in fact the UN General Assembly which first recognised the need for a permanent international court to deal with atrocities of the kind prosecuted after the Second World War. At their request, the International Law Commission drafted two statutes by the early 1950s – however, these were shelved during the Cold War, which made the establishment of an international criminal court politically unrealistic. Decades passed, but in the light of proposals for ad hoc courts to prosecute international drug crimes, and war crimes in the former Yugoslavia and Rwanda, there was an increase in international support for a permanent global institution. The International Criminal Court was thereby set up in 1998, following a UN General Assembly vote of 120 counties to seven, with 21 countries abstaining.

Opposition to the ICC

The seven countries that voted against the treaty were China, Iraq, Israel, Libya, Qatar, Yemen and – astonishingly - the United States.

A well-meaning and progressive body of law enforcement voted against by a series of human rights undesirables – and the United States, alone from all the world’s progressive democracies. Even Russia voted for it and agreed to be subject to its jurisdiction.

It gets worse. The current administration under Donald Trump is considerably even more hostile to the Court than any before it, threatening prosecutions and financial sanctions on ICC judges and staff in US courts as well as imposing Visa bans in response to any investigation against American nationals in connection to alleged crimes and atrocities perpetrated by the US in Afghanistan. The threat included sanctions against any of over 120 countries which have ratified the Court for cooperating in the process. I don’t usually go in for wholesale emphasis, but really, read that last paragraph again – it’s shameful.

What makes them special? I think that it is this – an inability to accept that the citizens of the United States should be subject to any judgment of any sort over its actions from non-US sources. Coming from the very country that initiated the Nuremberg IMT in order to judge the inhumane actions of the peoples of other nations is even more disappointing and depressing.

Where does the direction come from? I have no idea, but I suspect it is a bit of a historical hangover from George III, combined with an ethno-centric view that ‘only foreigners are capable of committing war crimes, but we aren’t’ – and, one may assume, ‘they are gooks and towel-heads, and their lives are not as valuable as American lives’.

Domestic Judicial alternatives in the US

It’s not as if the United States’ record of punishing members of its own armed forces for committing atrocities in wartime is such that one might be inclined to say that ‘they don’t need external policing, they punish their own’.

On the contrary, their record here is worse than lamentable. From My Lai to Afghanistan and Iraq the US Army has repeatedly lied, covered-up, and on occasion caved in to international outrage by convicting soldiers of minor offences and then quietly releasing them when they thought no-one was looking. Similar to France’s protection of the DGSE agents that bombed Rainbow Warrior in Auckland harbour in 1985.

The other trend of activity to United Sates war criminals by their government is to praise them – the most recent stomach-churning example being the case of Navy Seal Eddie Gallagher.

According to his own comrades, who finally felt moved to report his conduct to authorities, Gallagher was a ‘toxic’ character who was ’OK with killing anything that moved’. Members of Alpha Platoon’s Seal Team 7, alarmed by their leader’s conduct, said they were initially shut down by military chiefs when they first spoke up, and told that their own careers would suffer if they continued to talk about it. However, eventually the Navy Criminal Investigative Service began an inquiry and the platoon members were called to give evidence. In text messages exchanged by the group around the time of their testimony, which were also obtained by the New York Times, platoon members urged each other to speak truthfully to investigators.

In interviews conducted by navy investigators, fellow platoon members told of a ruthless leader who stabbed the captive to death for no reason then forced his troops to pose for a photograph with the corpse.

‘The guy is freaking evil,’ Special Operator First Class Craig Miller, one of the platoon’s most experienced members, told investigators in sometimes tearful testimony. ‘I think Eddie was proud of it, and that was, like, part of it for him.’ Miller said Gallagher went on to stage a bizarre ‘re-enlistment ceremony’ over the body of the captive. ‘I was listening to it and I was just thinking, like, this is the most disgraceful thing I have ever seen in my life,’ he said.

At his court martial, the panel heard evidence that Gallagher had emailed a photograph to a friend in the United States, containing a photograph of him holding up the dead captive’s head with the words ‘Good story behind this, got him with my hunting knife.’

Another platoon member, Medic Corey Scott, said: ‘You could tell he was perfectly OK with killing anybody that was moving.’ In a lengthy report, the navy detectives laid out other allegations against Gallagher, including shooting a schoolgirl and an elderly man from a sniper’s roost.

At his court martial, Gallagher was acquitted of murder but convicted (in July 2019) of posing with the dead body of a teenage Islamic State captive he had just killed with a hunting knife. He was demoted in rank for this lesser charge – a decision Trump has since reversed.

Trump has even gone further: praising both Gallagher and two other military members he granted clemency to last month as ‘great fighters’. ‘I stood up for three great warriors against the deep state,’ Trump told supporters at Thanksgiving in Florida, apparently referring to his rebuttal of a proposal made just weeks earlier by Adam Mike Gilday, the US navy’s chief of operations, to deny Gallagher’s appeal for clemency and uphold his demotion.

With behaviour like this, it would seem that the US needs even more oversight into war crimes than even ‘uncivilised’ nations, not less. However, we repeatedly hear that – as a matter of principle – ‘no act of the United States, or its citizens, should ever be capable of being adjudicated by any non-US agency’.

On what basis? Again, this view goes completely against the original philosophy of the establishment of the original war crimes tribunal and assumes that the United States has some special place in the world, as to its citizens actions, that no other country or people have. Neither politically, or philosophically, is there any justification for such a status: it smacks a little too much of ‘manifest destiny’.

Of course, every country has soldiers that occasionally overstep the mark, to a greater or lesser degree, and the UK is no exception. But that is the point, we should all be capable of being called into account for our excesses – by an international agency representing the whole of mankind.

We Need to Work with What We Have

A better argument against the court, and one with some merit, is the charge that the ICC has often been inefficient, extravagant, incompetent, inconsistent and partial. However, here I come back to my introductory principle; yes the ICC may be broken, may be badly run, but it is all we have to deal with these issues on a transnational basis. It is the successor to the original Nuremberg IMT which clearly established the principle in international law that such a body should exist, and if it is broken the answer is to fix it, not to pretend it doesn’t exist – and not to refuse to cooperate with it.

There is enough inhumanity in the world, and we do not need any more. What we do need is an international tribunal with credibility and teeth, that will serve to say to would-be despots, tyrants and solders capable of inhumanity that their acts will not be ignored and will not go unpunished - notwithstanding the protectionism of their governments.

In summary, we cannot expect to work with a world that is exactly how we would like it to be, we have to work with what we have. Mankind needs international bodies such as the UN and the ICC, more than ever; if they need improvement, then so be it, and the way to achieve that is through more involvement – not less.