11.16.08 7:19 AM ET
How to Undo Bush's Human Rights Legacy
A leading global human rights lawyer lays out Obama's to-do list for restoring America's shattered reputation abroad: close Guantanamo, end the death penalty, engage Darfur, and re-embrace the Geneva Conventions.
President-elect Obama is the living embodiment of what human rights can do—the product of Brown v Board of Education and the achievements of the civil rights movement in the 60s. His victory is greeted by a world where suddenly the American flag is waving not burning, in the expectation that he will somehow right the wrongs of Guantanamo and Abu Ghraib, of Bush administration defiance of the United Nations and the Geneva Conventions. There is no doubt that Team Obama is committed to global justice: how can they re-engage with the struggle to achieve it?
Firstly, by supporting the International Criminal Court. The treaty establishing it was signed by President Clinton before he left office; a petulant George W. Bush “unsigned” it, then approved the American Serviceman Protection Act (Jesse Helms’ “bomb the Hague” bill) which empowered him to use force to free any American charged with war crimes. This puerile behaviour continued for several years, with the U.S. threatening to withdraw aid and military support from any country that joined the court. Despite this bullying, 108 states have by now ratified the court’s statute, and the U.S. will have a new opportunity to negotiate terms for its own membership at the 10-year review conference, to be held in Uganda in 2010.
The Bush administration regarded international law as a set of rules that applied to other countries. Team Obama will want to engage with it.
The ICC is now up and running, with several Congo war lords on trial for recruitment of child soldiers and an indictment confirmed against Ahmed Harun, whom the prosecutor alleges is the architect of mass-murder in Darfur. The U.S. has a moral duty to help the court at this juncture, because Darfur was referred to it by the Security Council in 2004 after Colin Powell had accused the Bashir government of genocide. It will now need American muscle to pressure Sudan to surrender Harun, who has been elevated to minister for humanitarian affairs, from which post he now interferes with aid efforts. The outcome of Harun’s trial would decide whether the prosecution’s genocide charge against Bashir himself should proceed.
The Obama administration will have no difficulty in closing Guantanamo. There are only 255 prisoners left and those against whom there is any admissible evidence can be tried by jury in federal courts or by a regular court martial. The others can be sent back to their country of nationality, or else released under surveillance conditions (that British invention, “SIAC Bail,” a form of house arrest which allows some freedom, might be used as a temporary measure). But how can the US atone for the use of torture on Donald Rumsfeld’s watch? By ratifying the Torture Convention, for a start. And then by taking an initiative that would, for the first time, provide a meaningful safeguard for its prisoners of war, namely by waiving its right to confidentiality in Red Cross prison visitation reports.
The importance of such a step cannot be underestimated. Whenever Rumsfeld was asked about treatment of prisoners, he would claim that they could not possibly have been tortured because they were regularly visited by the Red Cross. The truth, of course, was that they were treated inhumanely, as the Red Cross in fact reported. But because of its insistence upon confidentiality, its reports were sent in utter secrecy to commanding officers, who, in the case in the case of Abu Ghraib, chose to ignore them—until one leaked to the Wall Street Journal.
The Red Cross defends its obsession with confidentiality on the basis that without it, states which hold prisoners of war would not allow it to visit them at all. America could take the lead by waiving confidentiality, whilst reassuring the Red Cross that its visitation rights will not be hindered. Publication of its reports would either confirm that U.S. treatment complied with the Geneva Conventions or else call for an explanation. If the U.S. took this step other countries holding prisoners might be shamed into following its lead.
Then there is the death penalty. The U.S., in the engaging company of Iran, China, Saudi Arabia and Pakistan, is one of the big five executioners. Obama cannot change his countrymen’s attachment to capital punishment: Bill Clinton had to sign the death warrant for an insane man, Ricky Roy Rector, to clear his path to the White House, and during this campaign Obama was forced to promise that he would not interfere with some states’ plans to execute child rapists. What he can do, however, is use federal powers to stop the execution of foreign nationals who have been convicted in breach of international law, usually by denying them consular access when arrested, contrary to the Vienna Convention. There have been a number of such executions, condemned by the International Court of Justice and “regretted” by a Bush administration that did not lift a constitutional finger against them. There are more in the death row pipeline, and Professor Obama—for many years voted the best constitutional law lecturer at the University of Chicago—might find a way to stop states like Texas putting his country in breach of the law of nations.
Commander in Chief Obama will probably alter his predecessor’s edicts to ensure fairer trials for terrorists suspects, although his oratorical powers may not be sufficient (and may not even be exercised) to persuade his people of the futility of making martyrs of any convicted of complicity in 9/11. There is the prospect of the execution of a few Guantanamo inmates—Khalid Sheik Mohammed in particular, if his post-waterboard confessions to masterminding 9/11 are used against him. It would be the ultimate absurdity to give such people what they want and pray for—a fast track to paradise and a martyr’s following.
One bad idea that gained traction from Democrats and Republicans alike in the course of the election campaign was to replace the United Nations with an organization open only to democracies. There would be difficulties in defining fitness for membership and at least one third of the world would be rejected, including China, now America’s biggest trading partner. There might, however, be some point in creating an alliance that could deal with two rights which the UN has proved utterly incapable of protecting, namely representative government and freedom of expression. The British Commonwealth has abjectly failed in these respects too (see Fiji, Zimbabwe, Bangladesh, Singapore, etc. etc.) An American-led alliance might succeed, at least in simple matters like forcing the army dictatorship in Fiji to hold elections (this could be achieved over night, if the U.S., Australia and New Zealand combined to threaten airline and football isolation).
The Bush administration regarded international law as a set of rules that applied to other countries. Team Obama will want to engage with it: Harold Koh, former Assistant Secretary for Democracy and Human Rights, is predicted to be its first Supreme Court appointment; David Sheffer, Clinton’s War Crimes Ambassador, is tipped to be Obama’s UN Ambassador; Susan Rice and Samantha Power, who will both be important players in the new administration, have in the past urged U.S. action to stop genocide. They are unlikely to leave this task to ragtag UN peacekeepers from poor countries, who go nervously and without proper equipment to places like Darfur and the Congo where there is no peace to keep.
The world this week has such great expectations of Barack Obama that he may well disappoint. Some problems, especially in Africa, are intractable and he has a recession topping his agenda. But it is unlikely that this heir of Franklin “Four Freedoms” Roosevelt and of John “ Ich bin ein Berliner” Kennedy will abandon the dream of an international community based on the rule of law. It will be his contribution to the global struggle for justice that will decide whether his election goes down not only in American history, but in the history of the world.
Geoffrey Robertson QC is a member of the UN’s Internal Justice Council and author of Crimes Against Humanity (The New Press).