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.