International Law, the U.S. Declaration, and the George W. Bush Administration

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Fri Jan-05-07 04:37 PM
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International Law, the U.S. Declaration, and the George W. Bush Administration

International law? I better call my lawyer � I don�t know what you�re talking about by international law � George W. Bush, 2003

For as long as I can remember I have been a firm believer in the concept of international law. Why? For exactly the same reasons I want to be a citizen of a country that is based on the rule of law. The absence of laws in a country means either anarchy or tyranny. What those two terrible systems have in common is that the powerful take from the powerless, who are then enslaved or left with nothing.

The international situation is analogous. The absence of international laws means international anarchy. That means that powerful peoples may enslave, invade, make war upon, or otherwise take unfair advantage of other peoples, using whatever barbaric methods they can devise, whenever they feel that it is to their advantage to do so. It is the lack of international law over the vast majority of human history that has allowed that history to be filled to the brim with tyranny, slavery, and disastrous wars, with tragic consequences to millions of the world�s people.

Therefore, I believe that international institutions and conventions that came into being in the 20th Century, such as the United Nations, the Universal Declaration of Human Rights, the Geneva Conventions, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Prevention and Punishment of Genocide, the International Criminal Court, and the Kyoto Protocol on climate change are great landmarks in human history. They haven�t solved all of the world�s problems, but they certainly represent a valiant attempt and a great start in that direction.

The U.S. Declaration of Independence and Constitution provide the seeds for international law

The U.S. Declaration of Independence is far more than a declaration of independence. Indeed, it is one of the greatest and most influential documents of all time, with influence extending far beyond its country of origin, to all of humanity.

Our Declaration of Independence proclaims the dignity and intrinsic worth of all humans, and then proclaims the inevitable consequence of that � that all human beings have unalienable rights, including the right to life, liberty and the pursuit of happiness (I emphasize all human beings because the Declaration was clearly meant to apply to all human beings, not just members of certain specific races or nationalities.) I don�t believe that in the past six thousand years or so of human civilization a nation had ever proclaimed anything like that. Yet, within the next two centuries those basic concepts proclaimed by the U.S. Declaration of Independence would be accepted as self-evident by much or most of the rest of the world and would result in a proliferation of international laws aimed at transforming those concepts into reality.

A little more than a decade later, after winning our War for Independence, our Founding Fathers produced a Constitution to provide the foundation for our new nation and to begin to make our Declaration into a reality. It was a great start towards that end, though far from complete. In 1791 the first ten amendments were added to our Constitution as a �Bill of Rights�, which specified numerous individual rights as a bulwark against government tyranny. Some seventy years later, following the American Civil War, amendments XIII through XV were added to our Constitution to fix its greatest deformity. By abolishing slavery and providing the former slaves with political and civil rights, these amendments formally acknowledged in law the universal nature of the Declaration of Independence (though the political and civil rights granted by the new amendments didn�t become much of a reality until several decades later.)

The beginnings of international law

It took two World Wars, a massive genocide perpetrated by Hitler�s Nazi Germany, and two great leaders, Franklin Delano Roosevelt and Winston Churchill, to create the conditions for proceeding to establish a world order that would build upon the concept of human dignity, worth and rights proclaimed in the U.S. Declaration of Independence.

With the growing power of Nazi Germany, its genocidal mania, and aggressive war beginning in 1938 with its occupation of Czechoslovakia, the world faced perhaps its greatest threat ever. In that setting, the leaders of the only two democracies that posed significant barriers to Hitler�s lust for unlimited power met in August of 1941 to discuss how to meet the great threat facing them and the world.

Franklin Delano Roosevelt and Winston Churchill realized the importance of persuading the populations of their countries and other countries to enthusiastically endorse and support the effort to prevent Nazi tyranny from taking over the world. To those ends they realized that tough talk and threats were not sufficient or even desirable. Rather, they recognized the need to lay out a vision before the world that would clearly show the differences between them and their Fascist enemies. Thus, the Atlantic Charter of August 14, 1941. Here are some relevant excerpts:

The President of the United States of America and the Prime Minister, Mr. Churchill � deem it right to make known certain common principles in the national policies of their respective countries on which they base their hopes for a better future for the world.

First, their countries seek no aggrandizement, territorial or other;

Second, they desire to see no territorial changes that do not accord with the freely expressed wishes of the peoples concerned;

Third, they respect the right of all peoples to choose the form of government under which they will live�

Sixth, after the final destruction of the Nazi tyranny, they hope to see established a peace which will afford to all nations the means of dwelling in safety within their own boundaries, and which will afford assurance that all the men in all lands may live out their lives in freedom from fear and want;

Eighth, they believe that all of the nations of the world � must come to the abandonment of the use of force�. They will likewise aid and encourage all other practicable measures which will lighten for peace-loving peoples the crushing burden of armaments.

Following the �final destruction of the Nazi tyranny� the victorious nations of the world, led by the United States, wasted little time in beginning to make the principles proclaimed in the Atlantic Charter into reality. The creation of the United Nations was the beginning of that attempt.

Here are some excerpts from the preamble to the Charter of the United Nations, which you can see appears to be a direct extension and expansion of the beginning portion of the U.S. Declaration of Independence:

We the Peoples of the United Nations determined:

to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and

to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and

to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and

to promote social progress and better standards of life in larger freedom�

How the Bush administration undermines international law

The administration of George W. Bush does not reject all international law � just those portions of it that it finds inconvenient for its purposes. Philippe Sands, a lawyer specializing in international law, provides a great primer on international law and how the Bush administration (and Tony Blair) has undermined international law since taking office, in his book �Lawless World � The Whistle-Blowing Account of How Bush and Blair Are Taking the Law into Their Own Hands�. I provide here examples involving the International Criminal Court, global warming, the inhumane treatment of prisoners including torture, and the Iraq War:

The International Criminal Court
The purpose of the International Criminal Court (ICC) is to prevent the most heinous of crimes that cannot or will not be addressed at the national level. More specifically, its purpose can be gleaned through selected excerpts from the preamble to the 1998 Statute:

Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity,

Recognizing that such grave crimes threaten the peace, security and well-being of the world,

Affirming that the most serious crimes of concern � must not go unpunished�

Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,

Resolved to guarantee lasting respect for and the enforcement of international justice.

Of all the international laws objected to by the Bush administration, the ICC tops the list. Though the Bush administration provides many excuses for its hostility to the ICC, the underlying issue appears to be that it cannot tolerate the possibility that an American could ever be tried before the Court. For example, Bush claims that the Court�s jurisdiction cannot extend to Americans because that will undermine �the independence and flexibility that America needs to defend our national interests around the world�. Sands poses the following pertinent rhetorical question to that excuse:

The flexibility to do what? The flexibility to commit war crimes? The flexibility to provide assistance to others in perpetrating crimes against humanity? The flexibility to turn a blind eye when your allies commit genocide?

Consequently, though President Clinton signed the Statute, George Bush announced in 2002 that it was unsigning the statute. And he has gone well beyond non-participation, to active sabotage. For example, the American Service members� Protection Act authorizes the American President to �use all means necessary and appropriate� to release any American national who is �being detained or imprisoned by, on behalf of, or at the request of the ICC�; it prohibits all American cooperation with the ICC; it prohibits participation of American troops in UN peacekeeping operations unless they are granted complete immunity from the ICC; and it prohibits the U.S. from providing military assistance to any country that is a party to the ICC (with some exceptions).

Global warming
Global warming has been said to pose the biggest international challenge of the 21st Century. As Al Gore clearly describes in his recent book and movie, �An Inconvenient Truth�, there is virtually total scientific consensus that the emission of greenhouse gases due to industrial activities causes global warming, that the mean temperature of the Earth has been steadily rising with the advent of the industrial age, and that continuation of this trend is highly likely to result in rising sea levels with catastrophic effects for much of the world�s population.

On December 11, 1997, the United Nations adopted by acclimation the historic Kyoto protocol, a complex international plan to address the problem of global warming. U.S. President Bill Clinton called the protocol a �historic agreement � to take unprecedented action to address global warming�, and Vice President Al Gore signed it in November 1998 � though it wasn�t submitted to Congress for ratification because of excessive opposition.

During his 2000 campaign for President, George W. Bush promised to undertake efforts to reduce carbon dioxide emissions in order to reduce global warming. However, within two weeks of taking office he signaled the cancellation of that promise in a letter to four U.S. Senators, explaining his opposition to the Kyoto protocol primarily based on his claim of the absence of scientific consensus on the issue of global warming. Bush then pulled the United States out of its international commitment to the Kyoto protocol, leaving us and Australia as the only two industrialized countries uncommitted to the international effort to respond to this great threat. And to justify his irresponsible actions, George Bush has repeatedly misled the American public on this issue, for example by attempting to silence our country�s leading climatologist, James Hansen, in his efforts to educate the American public. Although these actions are not illegal with respect to international law, they certainly indicate contempt for it, and they are grossly irresponsible for the leader of the world�s number one emitter of greenhouse gases. This is what Philippe Sands says about Bush�s efforts to pretend that there is a lack of scientific consensus on global warming:

By making the argument, the Bush administration plays into the hands of those who consider the United States to be self-interested and unwilling to accept its responsibilities for the consequences of its industrial might. If all the other industrialized countries are willing to accept their responsibilities, then why not the United States?

The inhumane treatment of prisoners, including torture
The Geneva Conventions of 1949 (to which the U.S. is a signatory) specify numerous criteria for the humane treatment of prisoners of war, and also that anyone falling into enemy hands during wartime is to be accorded prisoner of war status unless determined otherwise by a competent tribunal.

Furthermore, anyone falling into enemy hands and who is determined not to be a prisoner of war must be charged with a criminal offense in order to be held in captivity, and they must be accorded all the rights of accused criminals. This includes informing the person of the reason for his detention, the presumption of innocence, access to a competent attorney, the right to confront witnesses, etc. The bottom line is that no person, whether prisoner of war, suspected criminal, or a person given any other designation, can ever fall outside the scope of these minimum international protections.

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 further protects all categories of persons against torture.

The Bush administration, however, has repeatedly claimed that America�s detainees at Guantanamo Bay (and elsewhere to a lesser extent) have no rights according to international law. Consequently, the great majority of those detainees have been held there indefinitely without charges, have had no access to an attorney, have not been tried or (if they have been tried) have been denied the opportunity to confront witnesses against them, and many or most of them have been repeatedly tortured. And by his repeated public pronouncements to the effect that the detainees are murderers and terrorists, George Bush has erased the presumption of innocence. The Bush administration claims that these detainees have no rights according to international law are based on three arguments � none of which have any merit:

First, the Bush administration claims that by designating the detainees as �unlawful combatants�, their rights are thereby abrogated. There are two major problems with that argument. First, in the great majority of cases there has been no legal determination that the detainees are not deserving of prisoner of war status. And second, as noted above, international law specifies that there are absolutely no categories of persons who are without legal rights.

The second Bush administration justification for abrogating all rights of the detainees is that Guantanamo Bay is outside the territory of the United States. That argument is nothing but a shameful attempt to deny human rights on the basis of a technicality, and it has no basis in international law, since the United States has sole control over the detainees, regardless of whether or not they technically reside on U.S. territory.

Thirdly, George Bush claims that the detainees have no rights in international law because U.S. law trumps international law. That argument is even more ridiculous than the other two. If a country can legally claim the right to disregard international law simply on the basis that its own laws trump international law, then international law and all of its accompanying treaties would be devoid of all meaning.

The American war in Iraq � The crime of aggressive war
As noted above, the most important reason for the establishment of the United Nations in 1945 was the prevention of war. Accordingly, the United Nations Charter prohibits the initiation or the continuation of war except under two circumstances: self-defense and, when authorized by the UN Security Council to �take such action � as may be necessary to maintain or restore international peace and security�.

George Bush repeatedly attempted to obtain the authorization of the UN Security Council for his planned invasion of Iraq, for the purpose of legal cover. But the UN Security Council would not buy the pack of lies that Bush sold to the American public and the American Congress regarding Iraq�s possession of weapons of mass destruction and its ties to al Qaeda.

Even Donald Rumsfeld explained to Bush that the invasion would be illegal without Security Council approval. Bush�s response was �I don�t care what the international lawyer says� We are going to kick some ass.� And indeed he did � or rather, the American soldiers who were ordered into combat by George Bush managed to kill several hundred thousand Iraqi civilians.

Motives

What are George Bush�s motives for his contempt for international law? Sands doesn�t really try to answer that question, perhaps because it is not possible to answer it with any certainty.

I don�t think that the answer is very complex. International law provides barriers to George Bush�s lust for power and profit. Joining the international effort to control global warming would mean the enactment of laws in the United States which would cut into the profits of George Bush�s main supporters and campaign donators. Complying with international laws against aggressive warfare would have meant that George Bush could not have invaded Iraq, with the resulting billions of dollars in profits made by Halliburton and other major supporters of the Bush administration. The International Criminal Court poses a danger to many members of the Bush administration, as well as Bush himself, should they decide to travel to foreign countries after they leave office. And I won�t even attempt to guess why he chooses to treat his prisoners as if he was some medieval King straight out of the Middle Ages.

The consequences of U.S. contempt for international law

No human community, large or small, can function under a law based system when the most powerful members of the community refuse to abide under the rule of law, unless the other members of the community have enough will, organization and power to force them to do so. Thus, the consistent contempt for international law shown by the leaders of the most powerful country in the world puts in serious jeopardy the law based international system built up so carefully during the 20th Century. It tends to create what Philippe Sands calls a �Lawless World�.

Within nations, persons who refuse to abide by the laws of the land, and whose actions are generally restrained by law abiding citizens, are known as criminals. When similar types of people cannot be restrained by law abiding citizens they are known as tyrants. It is a terrible tragedy that the leaders of the United States today have placed themselves in that position within the international context: If they can be restrained by the rest of the world they are international criminals; if not, they are international tyrants.

Thus, as long as the Bush administration or people like them retain power in the United States they will either wreak death and destruction on the rest of the world in their attempt to get what they want, or else the law abiding nations of the world will succeed in restraining them from doing so, probably relegating them to second class power status in the process. The former has been an unmitigated catastrophe, which would expand greatly over time in the absence of restraining influences. Though I am an American citizen, I believe that the latter alternative is vastly preferable.