How to Undo Bush's Human Rights Legacy

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).