Even warriors are pleased to think that war might end. You’d be surprised. I’m not even talking about the grunts who lose their limbs and eyes and jaws – these are the people who live off war, giddy at the prospect of peace. Saw it once at the Global War Game, like a quick look out a closing door. The Global Game, they called it, coyly, at the Naval War College in Newport, in a squat steel-glass pile like CIA rootstock transplanted among the cottages. You can swim off the rocks beneath the cliff, walk, or eat lobster with specialized tools. Some friend of some friend in the inheritance business hosted people at the New York Yacht Club there. High season, lots of people of all genders on the make. In those conditions war’s great fun.
I had the killjoy role and spoke for the bottlenecks and shortages that gripe the home front and hobble the armies, the painful friction that stops wars of their own weight, which is all we know of peace. My side was winning. We had just won a sanitary war in Kuwait. We had lost interest in our first war on terror, which was running into money. The Berlin Wall was down and the Soviet empire was collapsing. There was no one to fight. Torpor mired the map tables and attrition models in the red team’s sanctum. People wandered around in a happy daze daydreaming new roles for the troops: sharing out food, bearing children to safety, comforting victims.
People everywhere felt that way. I more or less recall a party in the basement of an old secret police training center outside Prague. Those people can celebrate. The morning after featured the most spectacular projectile vomiting I have seen. Watching that, even at a safe remove, was purest awe.
Of course, things actually changed for the Czechs. Their collapse came true. For us, exhaustion didn’t last. We poked at a couple of civil broils and made them worse and pulled the wings off Arabs until a few of them armed themselves with office supplies and struck our two most pompous cities. Then it was back to normal.
War’s always been a guilty pleasure here. After the Great War we got around to doing what we do with any besetting vice, and criminalized it. We singled out Germany’s Oberste Kriegsherr, Kaiser Wilhelm, with Article 227 of the Versailles Treaty, “for a supreme offence against international morality and the sanctity of treaties.
A special tribunal will be constituted to try the accused, thereby assuring him the guarantees essential to the right of defence. It will be composed of five judges, one appointed by each of the following Powers: namely, the United States of America, Great Britain, France, Italy and Japan.
In its decision the tribunal will be guided by the highest motives of international policy, with a view to vindicating the solemn obligations of international undertakings and the validity of international morality. It will be its duty to fix the punishment which it considers should be imposed.
The Allied and Associated Powers will address a request to the Government of the Netherlands for the surrender to them of the ex-Emperor in order that he may be put on trial.
It never happened. The Kaiser found asylum with family in the Netherlands. There he dodged buffoonish assassins and deforested his lands to keep in trim like George Bush on the ranch in his second-term slough of despond. The royals confounded the victors with the old Bavarian maxim nullum crimen sine lege – there’s no such crime as war. Undertakings and morality, come on. Wilson considered flushing the Kaiser, as the treaty required, but he thought better of it. Knock over more royals and their proles might turn to the reds. Safe in what he always thought was part of his realm, the Kaiser made a lasting nuisance of himself, sucking up to Nazis and hunkering happily down when they invaded. The Kaiser’s Dutch castle is still a place of pilgrimage for Germany’s Springtime-for-Hitler patriots.
America kept trying to reform. We started a temperance movement of sorts and swore off war with the Kellogg-Briand Pact in 1929. The Senate was dubious about Secretary Kellogg’s plan. No one minded the idea of peace but sooner or later you’re always being made to fight for it. In ratification discussions, the Foreign Relations Committee was mainly leery of getting entangled in a mutual-aid treaty. Kellogg reassured the committee: “As I see it, we have no more obligation to punish somebody for breaking the antiwar treaty than for breaking any one of the other treaties which we have agreed to.” The treaty’s lack of sanctions was a selling point.
It worked about as well as you’d expect. In a few years everybody fell off the peace wagon. After the second world war we the victors tried again and punished “crimes against peace,” in Article 6-a of the Nuremberg Tribunal and Article 5-a of the Tokyo Charter. The whole proceeding was a bit awkward because we could only try the losers for things we hadn’t done. That let out the allies’ sport of crushing captives’ testicles, our habit of firebombing civilian targets, and much else. We hanged a couple of Japs for waterboarding since we didn’t do that then. We were on firm ground in one crucial respect: they started it. We established a principle: unprovoked attack’s a crime; preventive self defense is no excuse.
We wrote it into the United Nations Charter as Article 2-4: ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.’ Aggression is the highest crime. Resort to force without express permission from the UN is aggression. Chapter VII could not be clearer. The Security Council, and no one else, authorizes force. Every move is under direct supervision. The Security Council plans it and directs the execution, step by step. We don’t like to talk about it but there it is, supreme law of our land.
In practice it wasn’t so bad. You only got in trouble for aggression if you lost the war. That was the remit of Nuremberg, losers only. As long as you won, you faced only the tut-tutting of respectable people. Our rulers aren’t afraid of tut-tutting, and they take care to pick on weakling countries that can’t win. Nonetheless, sometimes our binges get out of hand.
When Nixon exterminated the peasants of neutral Laos and Cambodia he skated, but he was ushered out of office with impeccable discretion like a sloppy drunk at the club. Congress expunged the bombing from draft impeachment resolutions, as lawmakers of both parties were witting, so slush funds and stonewalls obscured the international backdrop.
In the spring of 1974, a UN panel wrapped up work: the Special Committee on the Question of Defining Aggression. The General Assembly got to work on Resolution 3314 (XXIX). Adopted without a vote late that year, the resolution defined the act of aggression, “the most serious and dangerous form of the illegal use of force,” and passed it to the Security Council. It pointedly reminded all states of the UN Charter’s prohibitions and the risks of war with weapons of mass destruction. Article 5 was a warning: “No consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression. A war of aggression is a crime against international peace.” Our campaign to outlaw war was about to triumph at an awkward time. There was one way out. Aggression as defined was a responsibility of the state and not a crime of the leadership. To sidestep responsibility for prima facie aggression, the state deftly personalized the act. Nixon was gone by August.
After our Indochina bender, we didn’t mend our ways. Jimmy Carter kept the guns and bombs coming for rollicking genocide in East Timor. The Reagan administration spattered pink pulp in Angola, El Salvador, Guatemala, Lebanon, and Gaza as its figurehead subsided into faultless imbecility. They started a wet squib of a civil war in Nicaragua but enthusiastic slaughter and destruction of civilian targets failed to win hearts and minds for the resistance. Instead, Nicaragua took the United States to court and won reparations for unlawful use of force. 1 The US fled the proceedings and heckled the court from a safe distance, then vetoed an enforcement resolution in the Security Council. In the General Assembly, the world twice voted for immediate compliance by overwhelming margins. We never paid a cent, and Congress responded by redoubling its aggression. We were on the skids, we didn’t care. We’d lost all self-respect.
Something had to be done. In 1989 the General Assembly resolved to see about setting up an International Criminal Court (ICC). The idea had been kicked around since the Franco-Prussian War but now its time had come. The work of drafting produced a statute for approval in 1998, and a Conference of Plenipotentiaries marked the draft up for adoption. The United States took a hand in the work but we couldn’t have it all our way. The proceedings show our delegates’ mounting disquiet at the prospect of real rule of law. 2
Early in the conference, the US called for a vote on the treaty. The conference outvoted us and adopted it 120-7 with 21 abstentions. Several features stuck in the US craw. Our government preferred an optional law that’s only for states that choose to sign up, a nice lenient law we could all live with. Let’s restrict the list of crimes, we said – to genocide, crimes against humanity, and war crimes, and not just isolated war crimes but widespread, systematic atrocities exceeding a threshold of world outrage. Some war crimes are just not that big a deal. The statute should permit all legitimate means of fighting dirty. To help the medicine go down we should let all states exempt themselves from prosecution for war crimes or crimes against humanity. We even offered case-by-case consent. I’d like to pick and choose my speeding tickets, too, but no one lets me.
We wanted to stick with customary international law, the clear and universal kind we broke in Nicaragua. The 1949 Geneva Conventions or the 1907 Hague Regulations, that’s one thing. The laws of war, that’s something else. It might be too abstruse and complex for the judges. We were also a bit skittish about the proposed list of banned weapons: nuclear weapons, antipersonnel mines, blinding lasers — they’re not atrocious. They’re controversial. Let’s not open that can of worms.
We couldn’t get comfortable with individual responsibility for the crime of aggression – it’s undefined, entirely too vague, and not even really illegal. Nullum crimen sine lege! Our victims saw it differently. Vietnam and Lebanon were all for trying criminal aggression. But, we said, sometimes it’s no one’s fault. That’s how we think of it, anyway, a tragic chain of missteps and mischances on a slippery slope, luckless misunderstandings that undo the statesman’s most scrupulous agonies. We’re always very sad when it happens but — what can you do? France helpfully offered to extend guilt to criminal organizations, in line with the Nuremberg Principles, but most everyone agreed that the point of the treaty was to punish the commander for his crimes.
Commanders, yes, about that: the US wished to clarify matters with a proposal. A general runs a lethal force, whereas our civilian Commander-in-Chief, however much you dress him up in soldier togs, he really only presides over a bureaucracy, doesn’t he? It’s like herding chickens, really, his bureaucrats might punch out and misbehave on their own time. The Commander-in-Chief might never know, and then, under civilian law, it’s not his fault, is it? We all know hard it is to discipline civil servants. Now, generals can be negligent, and that’s very serious indeed, but not desk bound civilians, not really. In America, you see, the buck stops here… with the brass.
Here the Australians obtruded the precedent of the Balkans, where The International Tribunal of the Former Yugoslavia had indicted civilians in command structures of military or paramilitary forces. With our unequaled investment in command and control, the Dilbert defense wouldn’t fly.
The US wanted a strong and independent court, but it should take cases only on the orders of treaty parties or the Security Council. Otherwise, a rogue prosecutor might respond to complaints from any old powerless victim. That would be confusing and controversial. With the authority of the Security Council, the court could try criminals whether or not their states consent. But the prosecutor must not seize the initiative. It should act only on referrals. It should stand down when so directed. Referrals should issue not from the General Assembly but from the Security Council. The General Assembly lacked the Council’s weighty responsibilities.
Libya said they didn’t see the point of inserting the Security Council into the process, since that body sat on its hands when America illegally bombed them in 1986. Then the General Assembly had to take it on itself to call aggression in Resolution 41/38. (Tragic, that. We had no choice but to prove our resolve when we framed them for the Lockerbie bombing.) We continued to maintain, with a straight face, that the prosecutor would need states and the Security Council to protect it in a politically-charged arena and to help it pick its battles amid an overwhelming clamor of disputes. India pointed out that the Security Council did not represent the UN’s membership, and that the permanent members’ veto would afford unequal justice. The World War’s winners could get out of any scrape with a word.
As the statute took shape, the US delegation warned that any mention of aggression would undermine the treaty’s support. We hinted darkly at the stirrings of an obdurate bloc that would sink the treaty for their cherished right to start a war. Therefore war could not be outlawed, so we thought.
Our state would not sign up for universal ICC jurisdiction. No matter that under existing international law, jurisdiction was already universal: any state could prosecute us for war crimes, genocide or crimes against humanity. We didn’t want to hear it from this court. You could almost smell the panic as our state clung to its exalted image. If a state accuses us, that’s a dispute with an enemy, perfidious and malign, all lies. But if the world speaks for that enemy — for that peasant waist-deep in brown water with his ox, or for that hired picker stooping on a terraced slope — then we are not regarded as the best of all the world. The horror!
As the world consensus gelled, we tossed in a last-ditch proposal. We forced a vote, which was dirty pool, as the signers had hoped to approve the statute by acclamation. They quashed the US changes 113 to 17, with 25 states abstaining. President Clinton signed the treaty to keep a hand in, but the US made it clear they would not be ratifying it.
The Rome Statute established The International Criminal Court as an independent entity, able to act without a special mandate from the Security Council. The Court would try individuals rather than States, and hold them accountable for the most serious crimes of concern to the international community — genocide, war crimes, crimes against humanity, and the crime of aggression. As the UN Secretary-General put it, the court is meant to “bring nearer the day when no ruler, no State, no junta and no army anywhere will be able to abuse human rights with impunity.” Now here was something else to spoil our fun at the war games: The law. The dock. The prison cell.
Then came September 11 of 2001. As the shock and grief of the people who bore it rippled out into countless self-adhesive flag decals, everyone knew there would be trouble. A surge of accessions put the ICC treaty over the 60-country threshold for entry into force by July 2002.
The month before the treaty entered into force, the US nullified President Clinton’s signature, relieving America of its obligation not to defeat the object and purpose of the treaty. Our letter read:
…[I]n connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, [...] the United States does not intend to become a party to the treaty. Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000. The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary’s status lists relating to this treaty.
With its sovereignty restored, America set about wrecking the treaty. Our UN delegation threatened to cripple UN peacekeeping missions, cutting off their funding and vetoing renewal unless US troops were granted immunity from prosecution by the Court. On the advice of the UN Legal Counsel, the Security Council humored America with some inapplicable nonsense, passing Resolution 1422 on July 12, 2002. Resolution 1422 immunized personnel from ICC holdouts involved in UN missions for twelve months. Unappeased, Congress passed the American Service-members Protection Act (ASPA), prohibiting assistance to the court and authorizing force to release any US or allied personnel detained by the ICC. We twisted arms to seal scores of bilateral agreements to undermine the treaty.
In outlawing war, Kellogg and the Senate thought a lot about our vital interest, the things that we would fight for. With Reagan’s defiance of the World Court and ASPA’s threat of force against the law, we’ve clearly articulated the vital interest of the state. Impunity, that’s America’s vital interest. That’s why we fight.
In October of 2002, Congress passed Public Law 107-243. It authorized use of armed force in Iraq, subject to a Presidential determination. Congress did not declare war. Perhaps they thought twice about their constitutional responsibility in light of the new crime of aggression. The cares of state weighed a bit heavier now.
The following month the Security Council passed Resolution 1441 (2002). It demanded Iraq submit to more rigorous inspections. It warned of serious consequences while remaining seized of the matter. The meaning was clear: the Council alone would authorize any next steps.
Saddam accepted the terms. Check and mate. Inspections could proceed. There was no excuse for force. Saddam’s letter has gone down the memory hole here at home but it’s destined to become a unique and historic communique. It shows Saddam as a whirling cartoon Tasmanian devil of invective, discursive, throwing off vivid loony dribs of poesy, and, on the merits, undeniably right. When Thucydides chronicled Athens’ peak and sanguinary fall, he put words in the Melian victims’ mouths but Saddam, the victim, can speak for himself. For sheer defiant comedy his letter ranks with the unseemly gestures of the tyrant, Aristion, mooning his besiegers from the crumbling walls of Athens.
On February 12 the UNMOVIC weapons inspectors reported progress. This was awkward for us, as the Security Council refused to authorize force, absent a material breach under the tightened inspections. Our backup rationale, therapeutic regime change for the Iraqi people, had the disadvantage of contravening Article 2-4 of the UN Charter.
On the home front we played with our food in the cretinous way that harks back to World War I, back before we outlawed war. The object of our leadership’s interdict was not Hunnish enemy sauerkraut as before, or even the piquantly-spiced dishes of our Iraqi foes. We were to shun food we imagined to be French, spurning their savory treats to intensify their fancied diplomatic isolation. Now our masses chewed, not French food, but Freedom Fries and Freedom Toast, prompting cowed patriotic affirmations from the British-owned French’s Mustard brand. Official agitprop explained our embargo only vaguely.
Our frappe de frites came about like this. Resolution 1441 did not authorize the use of force, and America’s war planners were anyway reluctant to admit that their war required UN permission. So they drafted a resolution that purported to suspend the ceasefire of the good war of ‘91. That trick worked when we bombed Iraq in 1999 — we just waved an eight-year-old authorizing resolution without ever consulting the Council — so why not dust it off? As far as we’re concerned, the first war never really ended, we’re still rescuing Kuwait. After all, we never really stopped bombing Iraq, and no one seemed to mind. In the US draft, the Security Council “Decides that Iraq has failed to take the final opportunity afforded to it,” washing its hands, suspending its protection of Iraq, yet somehow remaining seized of the matter as the law requires.
NATO satellites Spain and Britain gamely went along, but the resolution flopped. No veto was needed to kill it. The votes weren’t there. The US didn’t bother to press for a vote. That would only make it clearer that force is not authorized or legal. We just ignored the law and went to war. The French were simply the most articulate advocates for rule of law. That is why we held their dainties hostage.
Since we like to keep our grudges vague at home, we naturally deep-sixed the French Foreign Minister’s address to the General Assembly. It galvanized and moved the chamber. It speaks to a world that is hard to conceive in our homeland miasma of crisis and threat and fear. Dominique de Villepin’s initial words were elegiac: “Here we are meeting today a few hours before the weapons break their silence.” The world had failed to stop our country’s war. He then rallied the world to palliate the suffering that would ensue, to restore the institutions we had wrecked, and crucially, to reaffirm the laws we set aside. “First of all, respect for law. Keystone of the international order, it must apply in all circumstances, but even more so when the gravest decision is to be made: to use force.” He was speaking of the UN Charter, supreme law of our land under Article 6 of our cherished Constitution, forgotten here at home but nowhere else. His words were the consensus of the civilized world. As Secretary-General Kofi Annan said of the invasion, “I have indicated it was not in conformity with the UN Charter. From our point of view, from the charter point of view, it was illegal.” A war of aggression.
Bombardment commenced on March 19th. We invaded the following day. We blew the society to bits and set off a civil war that turned Iraq over to Iran.
With war a fait accompli, the Security Council walked a fine line to acquiesce to aggression without legitimating it. The UN’s raison d’etre was at stake: as Strobe Talbott was told, the Bush administration’s contempt for UN legal authority would let the war “kill two birds with one stone.” 3
A series of resolutions consigned the origin of the war to tactful oblivion. Resolution 1511 (2003) created a multinational force: now that the country was blown apart, ensuing violence required an occupation. Then in 2004, Resolution 1546 put a Band-aid on what Russia called the bleeding wound. There was something for everyone in it. The invaders called it their mandate: a pretense of multilateral review that keeps the UN out of military matters. Iraq got its sovereignty back, more or less: they said, “Thank you, Sir, may I have another,” and formally requested occupation. The UN got a role in ending the occupation. The UN also got to reassert humanitarian law, if only in the toothless preambular boilerplate. In a clever gambit, the puppet government got authority to end the invaders’ mandate. Since the invasion force was the only possible brake on the Sunni-Shia bloodbath it set off, consensual occupation was assured. Our tame Iraqi leaders got no say in our maneuvers and assaults inside their country, but then, they didn’t ask for it.
We mellowed a bit, having got our way. Even at the Naval War College you could hear the still, small voice of sympathetic understanding. The Security Council means well… the spirit is willing but the flesh is weak. Institutional rigidities often prevent it from enforcing its will. With its political weakness and division, sometimes it can’t express its will at all. So many decisions come out all wrong. At times it seems unwilling to act. At those times, when the Council loses heart, UN members must help it to do the right thing. We attacked to uphold UN Authority. We’re only doing what they want, deep down inside. The Charter lives on.
Though the act of aggression dates from Nixon’s time, the crime of aggression was formally defined only last year. The Rome Statute as adopted made aggression a crime but left its definition open while the signatories worked to define it. In June of 2010 the states parties to the ICC treaty adopted RC/Res.6 by consensus. The scope of ICC jurisdiction and the elements of the crime are now law. Now intent depends on knowledge of the facts, not law. This blocks the Bush trick of getting derisory carte blanche from a family retainer. If the Security Council refers an accusation, the Court will exercise jurisdiction whether or not the state concerned accepts. Complex deferrals and options sweeten the pill, but our impunity’s in peril and we know it. Cables published by Wikileaks show impunity slipping away. One cable created in January of 2008 shows the US Ambassador pressing Belgium to restrict the ICC’s mandate. The US wanted the court to act only on the orders of the Security Council. The permanent members, our envoy said, would concur. They liked to be more equal than others, with their prerogative of turning justice on and off. The government of Belgium didn’t budge. They reaffirmed their position, shared with Germany and Greece: independent ICC authority to try crimes of aggression.
As it lost the battle to neuter the ICC, the US opened a new front: disrupting UN reform. The intent was to cut the ICC off from UN support. In 2005 the UN Secretary-General suggested reforms in a report, In Larger Freedom. He proposed to broaden participation in the Security Council by adding new term and permanent members. He informally suggested restricting vetoes of resolutions on human rights abuses. Such changes might make it harder for the permanent members to push other countries around. Regarding rule of law, he wrote,
Justice is a vital component of the rule of law. Enormous progress has been made with the establishment of the International Criminal Court… Yet impunity continues to overshadow advances made in international humanitarian law, with tragic consequences in the form of flagrant and widespread human rights abuses continuing to this day. To increase avenues of redress for the victims of atrocities and deter further horrors, I encourage Member States to cooperate fully with the International Criminal Court and other international or mixed war crimes tribunals, and to surrender accused persons to them upon request.
To bombastic moralists with a twinging conscience, this means war. Photos of the Abu Ghraib torture chamber had come out, provoking the Security Council to drop the legal fantasy of peacekeeper immunity for unauthorized force. America dug in. At the ensuing reform summit the US delegation submitted seven hundred amendments. To escape the neo-Soviet niggling of the American blowhards, members purged the word impunity from the outcome document.
Yet reform initiatives continued, menacing our state with democracy and rule of law. Some focus on the Security Council: the old world-war allies run it like the Bullingdon Club. Coalitions proposed elective Security Council seats, or renewable terms subject to each state’s collective-security conduct and commitment. Other groups urged openness: hold meetings in public, or take minutes; cut out the cloakroom side deals; justify your vetoes; clean up the Mad-Hatter rules of order that flummox non-permanent members; let civil society have a voice. In the single most significant change, UN members affirmed their “responsibility to protect,” shifting the focus of international relations from national security to human security: to be fully sovereign, a state must meet its obligations to the people. ICC membership is requisite, as is compliance with the UN Charter. For a US government that wants to be a black box, impenetrable to the world community and impenetrable to its population, UN reforms threaten the statists’ power. Has our state earned its sovereignty? Has it fulfilled its duty to secure core human rights? Unthinkable thought.
The institutional stirrings react with trends in the wider world. The ICC is a powerful catalyst for the Article 19 transparency movement exemplified by Wikileaks. If America loses its grip on the facts, an independent ICC prosecutor is much more of a threat. This helps explain the US government’s frantic attacks on Wikleaks and Julian Assange. According to James Reinl, UN correspondent of The National (United Arab Emirates), the ICC prosecutor is conducting a “pre-examination” of the situation in Afghanistan, reviewing the crimes of the various forces there. He is looking at the Wikileaks files.
To obstruct an investigation, the United States can always attack the authenticity of the documents. But that means their provenance must remain in question. So it should be entertaining to watch as the government tries to convict alleged leakers for publishing, not government secrets containing probative evidence of war crimes, but some elaborate fiction that is nonetheless unlawful.
Public awareness is tricky for our state. Like the majority in nations large and small, most Americans think international law should take priority over national interest. Most trust the World Court to be impartial. We Americans feel we’re alone in thinking that way. Most of us think that the average American doesn’t really like the rule of law. Not so. Patriotic propaganda makes us conceal our internationalist sentiments in our secret hearts like impure desires. Given choices, people want to cut guns and bombs, despite intensive propaganda that limits public discourse to social-insurance cuts. When people are told what the war machine costs, two thirds of us want to cut it, by a third or so. Eighty-one per cent of us want to strengthen the UN. In a poll at the peak of our induced war fever in February 2003, 71 per cent found the following argument convincing:
If countries were to feel that they could attack each other whenever they thought it was best, the world would soon fall into chaos and conflict. It is very important for the US to set a good example to other countries by getting UN approval for taking military action.
What’s more, it’s not just a good idea, it’s the law. You’ll never hear that said by our official apparat. Propaganda muddies the water with diverse big and little threats, permitting helpful inconsistencies of thought: Shouldn’t we invade in this case, or that? How about here? Or there? What if this? What if that? We stretch self defense until it snaps and then we’re good to go. Now we fight to counter the emergence of imminent danger. Soon we’ll have emergent emergencies and un-emergent unemergencies and everything in between, and we’ll war with them all in self-defense. At the Naval War College they ponder the legal niceties of war with anyone or anything. In a pinch we can justify any absurdity, all we have to do is wave the flag. Sixty-six per cent of Americans say the United States has a special responsibility to be the leading nation in world affairs.
Prosecution of US torture “would not be understood or accepted in the U.S.” So said the Obama administration when it threatened Spain to obstruct a torture case under the Rome Statute. The government has striking confidence in Americans’ devotion to equal justice under law: the state can turn it on and off like a light switch. Indoctrination works. As a little patriot who babbled the pledge of allegiance by rote at 21 months, I have great respect for the power of indoctrination. My grade-school textbook illustrated the UN with a photo of our enemy Khrushchev. How did our widespread, furtive yen for rule of law ever take root here? If they crack down on it and kick in my door at 3 AM, I will implicate my father. He took me to UN headquarters and bought me a United Nations tie bar, and in the deadly boredom of primary school dress-up days, my dapper ornament instilled forbidden thoughts.
Patriotic fervor keeps the masses in line but it won’t hold up in court. The Treaty of Rome now makes aggression a crime. Criminal aggression is limited to manifest breaches of the UN Charter, unambiguously lawless in character, gravity, and scale: actions like the siege of Fallujah, for example, undertaken without UN authorization as part of an illegal war. The city’s collective punishment for desecration of mercenaries’ corpses, the siege featured:
- Attacks on medical facilities;
– Mass destruction of human habitation;
– Forcible population transfer;
– Extermination by deprivation of the means of life;
– Suspension of the rights of hostile parties;
– Poisoned depleted-uranium weapons.
All war crimes, if not crimes against humanity. A manifest breach of the Charter. Not, perhaps, as manifest as Nixon’s pithy directive, “Anything that moves,” but systematic and remorseless as a machine. A perfect test case for the rule of law, moot or not. Plenty of facts. US forces attacked Al Jazeera’s journalists, suppressing vital evidence, but the documents published by Wikileaks have extraordinary value. They establish commanders’ factual awareness and effective control, two crucial elements of criminality. They reveal the state’s forbidden facts.
No doubt our state will get away with it. For now the world would be pleased just to deter us in the future. The question is — what happens next, when our war machine chooses to test itself again? Now the UN has a way to punish crimes. If our leaders wage illegal war again, will they be so shameless as to veto their day in court? Or will the damage to the nation’s dwindling influence be too great to bear? As Nixon learned, the war machine might offer up a sacrifice so we can fight another day — better to bring a rogue president to book than a rogue state, if it comes to that. Will the Leader of the Free World jeopardize her freedom for a future war of choice?
In a state that is increasingly independent of the popular will, US citizens have no say in war at all. We vote and vote, and win or lose, wars take their course. We cheer, as at a football game, or not. The only check on our state is the outside world. Yet with painful slowness, the world is curbing our state. The war machine is losing momentum. We can’t see it, but here in America we see very little of the work de Villepin describes to “force the doors to peace.” We’re immured in a fortress state, kept in strict isolation from the world. We can hear what might be siege rams pounding. Is the angry mob outside coming for us, or coming to release us? That will be the fight of the coming decades, to keep people here at home inside the doors, or let them out.
- Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. The United States of America), Merits, Judgement, I.C.J. Reports 1986, p. 14 [↩]
- United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, A/CONF.183/13, Vol. II [↩]
- Strobe Talbott, The Great Experiment: From Tribes to Global Nation, New York: Simon and Schuster, 2008, p. 364 [↩]