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| October 28, 2004 | ||
| International Law in the U.S. Presidential Campaign By Anthony Dworkin |
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Questions of international law are not normally prominent in U.S. presidential election campaigns. But in this year when President Bush is running for re-election as a wartime leader, and John Kerry is attacking him for jeopardising America’s standing and credibility in the world, some aspects of international law have crept into the exchanges between the candidates.
In particular, President Bush has repeatedly touted his opposition to the International Criminal Court as a way of highlighting the alleged differences between his approach to national security and his opponent’s. In the first debate on October 4, Bush said he opposed U.S. participation in the Court because it would allow “unaccountable judges and prosecutors” to pull U.S. troops and diplomats up for trial. “It’s the right move not to join a foreign court…where our people could be prosecuted,” he added. By contrast, Bush charged, John Kerry was “for joining the International Criminal Court.” The President returned to the theme in the second debate, and has also mentioned it repeatedly on the campaign trail. In a rally in Wisconsin on October 6, he said that joining the Court could create “a legal nightmare for our troops” and promised that under his leadership “Americans in uniform will answer to the officers and laws of the United States, not to the International Criminal Court in the Hague.” The President’s description of the Court’s prosecutor as “unaccountable” is disputable. In fact, the statute under which the Court operates includes several checks on the power of the prosecutor to launch investigations and prosecutions. First of all, the Court only has jurisdiction in cases where the suspect’s own country does not itself investigate the allegations in good faith. Secondly, the prosecutor (who is elected by an assembly of all the countries that are members of the Court, and serves a term of no more than nine years) must obtain the approval of a panel of judges before he can launch a case. Moreover, the United Nations Security Council may vote to suspend an investigation or prosecution for one year if it believes that proceeding with the case will be harmful to international peace and security. Kerry's Middle Way on the Court President Bush’s charge that his opponent is in favour of joining the Court is misleading. According to a statement that his campaign gave to the Boston Globe, Kerry does not believe the United States should join the International Criminal Court “until our concerns are addressed and the Court develops a solid track record of fair prosecutions of the world’s worst criminals.” But Kerry added, “I will not continue the obsessive and self-defeating campaign President Bush has waged against the ICC and the close American allies that support it.” Kerry’s position on the Court appears to mirror that of the former Clinton administration. President Clinton’s representative in the negotiations on the Court’s statute unsuccessfully tried to incorporate a number of provisions that would give the United States greater control over the Prosecutor’s actions. Eventually, Clinton did sign the Court’s statute – but only in the final days of his administration, at the same time making clear that he had no intention of sending the treaty for ratification by the Senate. President Bush subsequently repudiated the United States’ signature of the statute, and launched a high-pressure campaign to persuade other countries to sign so-called “bilateral immunity agreements” (sometimes also known as “Article 98 agreements”) guaranteeing that they would not hand over U.S. citizens to the Court. The United States has suspended military aid to several traditional U.S. allies that have refused to sign such agreements. Although it seems that Kerry does not intend to try to ratify the Court's statute in the near future if he becomes president (a step that in any case would most likely be defeated in the Senate) he would be able to reverse the Bush administration's "unsigning" of the treaty. Bush's declaration did not actually remove the U.S. signature, but merely stated formally that his administration had no intention of ratifying (thus freeing the United States under international law to work against the object and purpose of the treaty). Even without joining the Court through ratification, Kerry could decide that the United States would participate as an observer in its Assembly of States Parties. More significantly, it seems clear that Kerry will abandon the campaign to secure bilateral immunity agreements from countries that have joined the court. What would this mean in practice? Generally, troops based abroad are governed by a “status of forces agreement” signed between the host country and the country which has sent the troops – and these agreements almost always include a provision saying that service personnel should be returned to their country of origin for trial if they are suspected of committing a crime. In his statement to the Boston Globe, Kerry said that “where American troops and officials are deployed abroad, I will make sure that our Status of Forces Agreements and other arrangements protect them from politically motivated prosecutions in any court.” The statute of the International Criminal Court explicitly recognized the possibility that such agreements might prevent states from transferring suspects to the Court. But the bilateral agreements that the Bush administration has been promoting go far beyond traditional status of forces agreements and the equally traditional doctrine of diplomatic immunity – since they cover not only serving military personnel and diplomats, but all U.S. citizens. Under a Kerry administration, then, the attempt to win immunity agreements for private citizens (including former government officials or soldiers travelling privately) would be abandoned. A Different War on Terror? In contrast to the International Criminal Court, the U.S. “global war on terrorism” has hardly featured in the election campaign. In general, John Kerry has been at pains to emphasize that he, like President Bush, regards the fight against al-Qaeda as a war in which he is determined, as he said in the first debate, to “hunt down and kill the terrorists, wherever they are.” But Kerry did make one little-noticed but significant statement to the Washington Post, promising that “a Kerry administration will apply the Geneva Conventions to all battlefield combatants captured in the war on terror.” Kerry added that he would abide by “a principle long enshrined in our military manuals, that America does not treat prisoners in ways we would consider immoral and illegal if perpetrated by the enemy on Americans.” President Bush’s policy on detainees captured in the war on terror was set out in a fact sheet published by the White House in February 2002. The Geneva Conventions did not apply to the fight against al-Qaeda, the President asserted, since it was a terrorist organization rather than a state. Detainees fighting for the Taliban in Afghanistan were covered by the Geneva Conventions, since they fought on behalf of a state that had signed up to the Conventions, but they were not entitled to prisoner of war status because Taliban forces did not meet the necessary preconditions. Under the Bush administration’s interpretation of the law, Taliban detainees were “unlawful combatants,” who benefited neither from the protections offered to prisoners of war in the 3rd Geneva Convention nor the protections offered to enemy civilians in the 4th Geneva Convention. The distinction in status between al-Qaeda and Taliban detainees did not therefore translate into any difference in the actual protections they were offered, and in practice there has been no attempt at the Guantanamo Bay detention centre to divide detainees into al-Qaeda and Taliban groups. Neither group was deemed to be protected against coercive interrogation (as prisoners of war and civilian detainees are under the Geneva Conventions), though they were protected against torture and inhuman treatment under the Torture Convention and under customary international law. Importing the Geneva Conventions John Kerry’s statement that he would apply the Geneva Conventions to all battlefield detainees doesn’t make absolutely clear how far he would change the Bush administration’s policies. His reference to U.S. military principles may however give some indication of the approach he would follow: traditionally, American forces have erred on the side of generosity in awarding prisoner of war status to battlefield detainees (as they did for instance to irregular fighters in Vietnam). They have also regularly held tribunals (as mandated in Article 5 of the 3rd Geneva Convention) to determine whether detainees should be regarded as prisoners of war or civilians. It seems most likely, then, that Kerry would take an approach something like the following, which seems consistent both with the spirit of the Geneva Conventions and with traditional U.S. practice. Detainees who were clearly part of the organized forces of a nation-state (as the Taliban were in Afghanistan) might be granted prisoner of war status. In any case, all detainees would be brought before a “competent tribunal” to determine whether they were taking part in hostilities or not. Those judged to be taking part in hostilities against the United States (whether or not they were granted prisoner of war status) would be liable to be held until the end of hostilities. They could be questioned, but would not be subjected to “physical or moral coercion.” However, given the ill-defined nature of the concept of coercion, some forms of pressure or inducement might still be practiced. It is notable that Kerry’s statement refers only to “battlefield detainees.” It is not clear whether a Kerry administration would claim the right to hold detainees arrested away from the battlefield (such as Jose Padilla, who was picked up in O’Hare Airport in Chicago) as “enemy combatants” or would treat them as criminal suspects in the domestic justice system. This is one of the most controversial aspects of the Bush administration’s anti-terrorist campaign, and it is unfortunate that Kerry has not taken a clear stand on this point. In the conduct of the war on terrorism, the practical difference between President Bush’s policies and those that John Kerry would pursue appears significant but not overwhelming. Already, following the Supreme Court’s intervention, Bush has begun bringing the Guantanamo detainees before Combatant Status Review Tribunals to assess whether there is sufficient evidence to continue holding them – a step which may be equivalent to the requirement for a “competent tribunal” in the Geneva Conventions. Like Bush, Kerry would probably claim the right to hold al-Qaeda suspects, at least those captured in battle zones, until the end of the “war on terrorism.” By bringing the detainees under the protection of the Geneva Conventions, Kerry would be committing himself to greater restrictions on how they could be treated, but international law already places considerable restrictions on how they can be treated – far more than some of the Bush administration’s officials wish to admit. Real and Symbolic Differences More important than the practical difference that Kerry’s policies on the war on terror and the International Criminal Court would make, however, would be their symbolic importance. President Bush’s antipathy to the International Criminal Court and his repudiation of the Geneva Conventions in the war on terror have fostered an impression that his administration has set itself in large part against international law as it is now understood by America’s allies. Kerry’s approach on both issues would fall short of what America’s allies (particularly in Europe) might hope for: Europeans would ideally like the United States to join the ICC, and most would not recognize the war on terror as a war in the legal sense at all. But his policies would represent a change of tone: they would indicate respect for the multilateral idea of an international rule of law, even while asserting America’s determination to follow its own understanding of how the law is best applied. The same pattern can be seen in respect of the notion of pre-emptive war. Under the United Nations Charter, countries are only permitted to use armed force in self-defence “if an armed attack occurs,” and many people regard the doctrine of pre-emptive war that President Bush has elaborated over the last couple of years as stretching the concept of self-defence beyond what the law permits. Kerry said in the first debate that he would never give up “the right to preempt in any way necessary to protect the United States of America,” but that it should be done in a way such that “your people understand fully why you're doing what you're doing and you can prove to the world that you did it for legitimate reasons.” Kerry was not rejecting the notion of pre-emption, but he was attempting to present it in a way that the rest of the world might understand as something more than a unilateral assertion of American might. Bush has mocked him relentlessly for proposing this “global test.”
President Bush’s supporters would probably regard Kerry’s desire to reach an accommodation with the requirements of international law, as it has traditionally been understood both by the United States and its allies, as a spineless seeking after global popularity. Others would see it as a sensible attempt to reverse a stance that has needlessly alienated much of the world from the U.S. anti-terrorist campaign, a campaign that is after all being fought in the name of justice and freedom. In this way, the candidates’ different views on international law represent in microcosm their contrasting ideas about the best way to promote America’s national interests in the world.
Related Links: Transcript of the first Bush-Kerry Presidential Debate (American Non-Governmental Organizations Coalition for the International Criminal Court) Kerry Opposes Role in Tribunal By Joe Lauria The Boston Globe, October 5, 2004 The Washington Post October 20, 2004 (registration required)
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