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Rebuilding Iraq: Intermission on war’s stage an opportunity for humanitarian assistance (San Francisco Chronicle) April 13, 2003

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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Act One of the Iraqi drama — the bold liberation of its people by military force — has reached its climax, and plans for Act Two — the establishment of a new government — are under way. But in the interval between the acts lies a crucial phase: the delivery of humanitarian assistance.

The manner in which humanitarian aid is provided will set the stage politically and diplomatically for all that follows in Iraq, as well as for future military interventions in the new century.

There are three sets of actors to watch in this humanitarian assistance scene. The lead actor in previous dramas of this sort has been the United Nations. Following the major military interventions of the past decade — in Somalia, Rwanda, Kosovo and now Afghanistan — the United Nations has undertaken a primary leadership role and has received generally high marks for its humanitarian work. In Iraq, however, the United Nations is standing by, hoping for a callback, but uncertain of the role it will play.

Next are the many nonprofit NGOs (nongovernmental organizations) that raise and distribute funds in times of disaster and crisis. Chief among these hundreds of agencies is the International Committee of the Red Cross, which, like the United Nations, has an established track record and strong credibility in providing humanitarian assistance. A fundamental tenet of its work is that it be truly independent, and not a part of the foreign or military policy of any particular country.

Which takes us to the lead actors in this humanitarian assistance drama: the victorious coalition forces from Act One who are not planning to leave center stage for some time. President Bush and British Prime Minister Tony Blair continue to debate behind the scenes, but so far all indications are that the United States will lead the humanitarian effort, with the military playing a key role. This would represent a fundamental paradigm shift from relief efforts of the 1990s and could leave traditional players such as the United Nations and the NGOs in a difficult position.

There is both good news and bad news in having the United States and its military take the lead rather than the United Nations. The good news is that large amounts of humanitarian aid are coming in from a wide array of nations, and the United States already has the boots on the ground to deliver food, water and other supplies quickly and safely. Using leadership in place also avoids another potentially contentious and time-consuming round at the United Nations, in the aftermath of the Security Council’s failure to act in the military phase.

The bad news is that, under traditional principles of humanitarian assistance, the Red Cross and other relief agencies cannot accept that aid from governments and distribute it under the umbrella of the U.S. military. The NGOs will feel they must either give up on helping the Iraqis in their hour of desperate need or forgo their independence as purely humanitarian organizations. The United Nations has already advised its workers to be careful not to be perceived as part of a military operation.

The cost of shifting the leadership of humanitarian aid away from multilateral organizations may be high, both in dollars and in ill will abroad.

Another option would be to continue down the road Bush and Blair embarked upon when they encouraged the United Nations to resume its Oil and Food program, and to call on the role United Nations — or even the International Red Cross — to plan a larger coordinating role.

The United States has led in the military campaign of Act One and will have a primary role in deciding about the postwar government in Act Two. Perhaps the place to give a nod in a more unilateral direction is in the humanitarian assistance phase by inviting the United Nations or the International Red Cross to provide the overall leadership. This bit of grace (and pragmatism) in victory might allow the military win to be followed by an important diplomatic and humanitarian success.

This op/ed appeared on Page E-5.

War is not ‘conservative’ (Scripps Howard News Service) March 11, 2003

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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Call me old-fashioned, but I want my country not only to do the right thing, but to do it in the right way. No matter how hard I’ve tried – and since my fellow Republican males support the war by 82 percent, believe me I’ve tried – I can’t convince myself that invading Iraq without U.N. Security Council support is the right way to go.

I am not a pacifist, or even an antiwar liberal. I’m basically a conservative who is troubled to be at odds with a conservative president on such an important issue. But in the end, I have concluded that the president will not be acting conservatively or rightly to invade Iraq without Security Council approval.

By definition, conservatives believe in limited government, and they have never been big fans of international governance, including the United Nations. Nevertheless, growing up in a conservative family, I was also taught that we either follow the law or we change it. We may not simply ignore it if it does not suit us.

How then can a conservative president follow the law, by posing the question of war to the U.N. Security Council, and then take it back and do what he wants if he does not like the council’s answer? In organizational life, you do not ask the boss’s permission unless you really need it and are prepared to live with the response. To do otherwise is a mistake and, in most cases, also wrong. But the U.S. seems prepared to do just that.

Put another way, if Iraq’s wrongdoing comes from violating U.N. Security Council resolutions, how can one country – or even several – take it upon itself to enforce the resolution of a multilateral body? Are we proposing to make an international citizen’s arrest if the Security Council won’t bust Iraq? If you read the U.N. Charter, or the full body of international law, you won’t find authority for that, unless it is a case of self-defense.

In fact, the Bush Doctrine itself, from which an invasion of Iraq would spring, is hardly conservative. This national security document, unveiled last fall, develops a strategy of preemptive action against hostile states and terrorist groups before they threaten or use weapons of mass destruction. The Bush Doctrine stands in stark contrast to candidate Bush’s more conservative campaign position that America should carry itself humbly in the world. Of course it is often said that Sept. 11 changed everything, but surely it did not end respect for international law and institutions.

If the United States is determined to go forward without Security Council support, I can only see two ways to do that and still honor international law. One is to demonstrate that this is a case of self-defense, that Iraq presents a clear and imminent threat to the security of the United States. The U.S. has spoken to the international community in such terms, and so far the court of world opinion isn’t buying it. Few see the threat as imminent, and many feel that self-defense and preemption do not mix. In a new age of weapons of mass destruction, however, preemption as self-defense at least deserves further consideration.

Another approach, which would have been more effective several weeks ago, is to claim that military action against Iraq is already authorized under U.N. resolutions and cease-fire agreements from the first Gulf War. Saddam Hussein stopped the war under the false pretense that he would disarm and abide by the terms of various international agreements. Now that he has clearly violated them, perhaps further military action is justified as a continuation of that conflict.

It is easy to criticize the United Nations – I have done it myself. The membership of the Security Council does not reflect current world realities, and the veto power should be reformed or suspended. But for the United States to submit its case to the council and then ignore its decision weakens the U.N., international law, and even the moral authority of the United States. Disarming Iraq is the right thing to do, but America should take the time to do it in the right way.

Those creaking World War II institutions (San Francisco Chronicle) February 26, 2003

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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If you could turn down the volume of the shrill rhetoric about Iraq, you would hear another disturbing sound: the cracking and groaning of such multilateral institutions as the United Nations, NATO and the European Union. Each of these organizations, formed in the aftermath of World War II, is unlikely to survive unchanged from their first bit test of the 21st century.

Although NATO has managed to patch up its most visible fissures — finally breaking a monthlong stalemate and authorizing weapons to defend Turkey — it is the most vulnerable of the multilateral bodies. With the collapse of the former Soviet Union, NATO is essentially all dressed up with no lace to go. It was always a marriage of Cold War and convenience, providing Europe a sure American defense against the Soviets, and establishing strategic military bases for the United States. Now that the Soviet threat is gone, there’s not much to hold that union together.

One sign that NATO was losing its way came with the addition of former Soviet satellites as members. Growing to 19 members from 12 creates management challenges. But when your former enemies join your defence pact, isn’t it really time to declare victory and move on to new institutions with more relevant goals? The difficulty in reaching agreement to defend against a new enemy — terrorism — has exposed NATO cracks that may prove terminal.

Similarly the European Union is showing its age, as Donald Rumsfeld’s “old Europe” takes stock of its aspiring “new Europe” members. Frankly this body, which has been courting former Eastern bloc countries, would have trouble agreeing on a dinner menu, much less a political or defense policy.

The crisis over Iraq has exposed two major fissures in the European Union infrastructure. Its longtime members are split, with several willing to take action against Iraq and others strongly opposed. Then Poland, Hungary and the Czech Republic, set to join in 2004, were basically disinvited from the meeting, and French President Jacques Chirac said Romania and Bulgaria might not be invited to join if they continued to support the United States in Iraq. “Quiet, you young upstarts,” was the clear message. Maybe these youngsters don’t want to sit at the “adults’ table” after all.

Which brings us to the U.N. Security Council, yet another anachronism from the 1940s. The whole idea of a body with rotating members and few permanent members with veto powers belongs in “The Seven Habits of Highly Ineffective Organizations.” That the vetoes would go to war victors of 50 years ago is an attempt to freeze history. It can’t be done, and the Iraq crisis reveals major cracks in the ice.

Now there are smaller headlines about new international bodies, such as the International Criminal Court electing its first judges. The ICC, the most important international institution since the United Nations, is opening without the support of the United States and other world powers. A related headline indicates that Belgium will try Israel’s Ariel Sharon for war crimes. If the United States is the world’s police, Belgium aspires to be its court.

That old multilateral institutions are struggling is not all bad. It’s probably time for NATO and the European Union to ask whether they are dinosaurs that should give way to new forms of organizational life. The U.N. Security Council needs to consider new permanent members that reflect current global realities and reform the veto process. But the new institutions aren’t all good either. The United States is right to have reservations about the ICC and Belgium’s notions of universal jurisdiction.

Just as it took world wars to create a League of Nations and the United Nations, we will now learn whether important international organizations will be reshaped, and whether it will take a major war to accomplish it.

This op/ed appeared on Page A-25.

Bush in a Box (Scripps Howard News Service) January 25, 2003

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For someone who likes moral clarity, President Bush cannot be happy about his options with Iraq. A series of actions by allies and the enemy — and one surprising step of his own — has left the president boxed in on every side. But like the jack-in-the-box toy, Bush is not easily contained and may decide to kick his way out.

Four very tall walls — political, diplomatic, legal and moral — have closed in on the president and his advisors as the Iraqi matter comes to a head.

Politically the president appears to be in a no-win situation. A strong majority of the American people does not favor military action against Iraq unless the United Nations or a large coalition of allies signs on. Neither of those seems likely anytime soon. On the other hand, having amassed thousands of troops and dozens of ships in the Gulf region, backing down now would be a major embarrassment. Scaling that wall, by persuading the American people that war is appropriate, will be a long and difficult climb.

Diplomatically the president has steadily lost ground since his surprising decision to turn things over to the U.N. Security Council. A couple of months ago, the United States had convinced many at home and abroad that there was evidence of weapons of mass destruction in Iraq. Based on those claims, President Bush appeared to be ready to lead a coalition of the willing into military action to disarm Saddam.

But then, at the last minute, the president reversed field and went to the United Nations instead. While that might have been a popular decision, it also meant that the president had lost control of the Iraqi matter, and especially the timing. International weapons inspections and deliberations are painfully slow processes, and they invite precisely the sort of games Saddam plays so well.

Starting with France and Germany, members of the Security Council say they are not persuaded of the need for military action at this time. There are only two ways to scale this very tall diplomatic wall: Convince the Security Council or ignore them. The former will take months — if it can be done at all — and the latter was more readily achieved before we empowered the Security Council to oversee the process.

Legally and morally, the case for war becomes steadily more difficult. Even hawks are hard-pressed to argue that we should go to war over the discovery of a dozen or more unarmed warheads. Notice the change in rhetoric. No longer are the president’s defenders talking about finding weapons of mass destruction, but about Saddam’s “breaches” of agreements. But in the law, you need not only a breach but also resulting damages. What has been discovered so far is a series of frustrating and improper breaches by Saddam, but I would hate to argue in a court of law that these resulted in the sort of consequential damage that justified a war.

How did the president end up in this box? One problem is that Bush has been following the advice of both his secretary of defense and his secretary of state, which have led in different directions. He has approved Donald Rumsfeld’s military buildup, while also following Colin Powell’s diplomatic advice, and the two tracks have not come together. The military is nearly ready, but the diplomatic timetable is way behind.

In another sense, Bush boxed himself in by turning things over to the Security Council. Everyone assumed that in making that decision, the U.S. had strong evidence about Iraq’s weapons of mass destruction, but that seems increasingly unlikely. Perhaps Bush’s advisors felt Saddam would refuse to cooperate with the U.N. weapons inspectors, bringing things to a head immediately.

Now the United States has its armed forces all dressed up with no place to go, leaving the president in a further quandary. We are playing the “bad cop,” ready to use force against Saddam at a moment’s notice. Perhaps only a “good cop,” European allies or Arab neighbors, can broker a deal that will prompt Saddam to leave Iraq and permit President Bush to declare victory.

In the end, this is not a president who likes to be boxed in. Faced with a choice between leaving the military on hold for months while arms inspections and diplomatic solutions play out, or using unpopular military force, Bush may well select the latter. If he does, it will be the most unpopular war since Vietnam, and he can only hope it will end quickly.

Moral authority for war (Scripps Howard News Service) October 29, 2002

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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Mother Teresa has it. Yasser Arafat does not. A recent survey of historians says George Washington and Abraham Lincoln had it, but Bill Clinton and Richard Nixon did not. The Catholic Church has had it for centuries, but lately its supply as eroded. Is it money? Power? Charisma? No, it is a more elusive quality: moral authority.

Moral authority is front-page news today because it is widely agreed that the United States needs it in order to take preemptive military action against Iraq. President Bush and his supporters believe the United States already has it, but many Democrats in Congress and leaders of other nations argue that only the United Nations can confer the moral authority to attack Saddam.

People are talking a lot about moral authority but most would be hard-pressed to define it. Four Harvard professors held a debate on “Moral Authority: What It Is, What It Isn’t,” and did not reach agreement. Moral authority may be one of those intangibles that, as a Supreme Court justice once said about obscenity, we cannot define, but we know it when we see it. In the case of military action against Iraq, however, people see it differently.

The words themselves point in the right direction. Moral means a concern about things that are right and wrong. Authority is the power to exercise control or influence. So whoever exercises control or influence over decisions about right or wrong has moral authority.

Is the United Nations, then, the source of moral authority about a preemptive attack upon Iraq? While there is a certain appeal to an international body playing such a role, a closer look at the United Nations and how it operates suggests that it is ill-prepared for such moral leadership.

Like Congress, the United Nations is essentially a political body, not a moral one. Nations come to represent and vote for their own interests. States align in blocs that are primarily regional or political in nature. As former U.S. Ambassador to the U.N. Jeanne Kirkpatrick said, “What happens in the Security Council more closely resembles a mugging than either a political debate or an effort at problem solving.” And political debates and pragmatic problem solving are still a long way from the exercise of moral authority.

The makeup of the United Nations would make the exercise of moral authority in a case like this very difficult. Saddam’s neighbors are unlikely to offend him and risk trouble by voting to attack him. Some U.N. members, such as Zimbabwe, have committed such recent and heinous offenses that their vote could hardly count in the moral authority column. In a broader sense, most of the states in the United Nations are not free and democratic, as we understand those terms. A U.N. ambassador or foreign minister from Syria or Iraq simply does not bring the moral authority to a situation like one from Britain or the United States would possess. Indeed, in a highly political, one-nation one-vote context like the United Nations, the exercise of moral courage and authority would be exceptional and not the norm.

The United Nations has frequently demonstrated that its decisions are more political than moral. For example, it has provided seats on its Commission on Human Rights to some of the most persistent violators of human rights. With its large Arab bloc, it has consistently condemned Israel, but not Arab terrorists. The list is too long to recite.

The passage of a U.N. resolution favoring military action would be a useful political victory for the United States but not a moral one. It would amount to a popular vote, and doing the right thing at the right time is rarely popular. A petition signed by 12,000 American college professors has it wrong when it says “any military action against Iraq should have the moral force of international consensus behind it.” International consensus may be a wonderful sign of political power and popular support, but it is not an indicator of moral right or wrong.

The United States should not acknowledge the United Nations as a moral authority about Iraq, but rather should apply traditional standards of “just war” theory to explain its actions. If there is a wrongdoer like Saddam, who has consistently violated international war and agreements, who is harboring weapons of mass destruction with a likelihood of using them, the United States has the moral authority it needs to take action.

Unmasking ‘new diplomacy’ (Scripps Howard News Service) September 4, 2002

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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If this were a tabloid at the grocery store check stand, the headline would read: “Massive Plan To Take Over World Uncovered.” Since this is, instead, a reputable newspaper, we should tone it down a notch and say that there are, in fact, people meeting in New York this week who are part of an ongoing plan to change global governance. They have made remarkable progress and their agenda is one that should be of real concern to the United States and other nations.

Like the mild-mannered Clark Kent, who disguised a powerful man with a larger agenda, this determined group meets under a seemingly harmless banner: The Assembly of States Parties of the International Criminal Court. They compromise representatives of the 78 nations that are establishing the court. But by creating a court they knew the United States could not support, proponents of “the new diplomacy” took another step toward their larger goal of altering the global playing field.

If, like most, you have followed the only headlines of the International Criminal Court act of this larger play, you might have concluded that the United States is the ugly protagonist in a drama about American isolationism. Indeed part of the new diplomacy strategy is to position the United States as the isolationist bully who will not play along with widely supported “improvements” to international relations. In fact, it is the practitioners of the new diplomacy who are introducing bold changes to international law and attempting to shame those who, like the United States, will not follow their lead.

So who are these people and what are they trying to do?

Who? The new diplomacy leaders are hundreds of nonprofit organizations that have previously been powerless in international diplomacy since statecraft is, by definition, practiced by states. They tend to be liberal, human rights organizations with a very limited and focused agenda. Their partners are small and medium-sized nations, such as Canada and European Union countries, who have also been longing for a larger role in a superpower world.

What? The agenda is to move international relations away from nations dealing with other nations and, instead, to develop overarching international organizations and treaties. In a sense, the new diplomacy seeks to achieve internationally what most of these organizations could never do within a powerful country like the United States.

When? The new diplomacy started with smaller treaties, such as the convention to ban landmines, and the Kyoto climate treaty, and has now moved to create an International Criminal Court over the objection of larger powers. The ongoing agenda is to create additional international norms and treaties about the rights of women and children, arms limitation, the death penalty and other traditionally decided by nations, not world bodies.

Where? Interestingly, the nonprofits are primarily from the United States. The nations, which in the case of the new world court constitute only 78 of the 189 states in the United Nations, are largely from Europe and Africa. The meeting in New York this week includes people from fewer than half the countries of the world representing less than half the global population, yet the group purports to create an “international” court of universal jurisdiction. To read the media accounts, you would think the United States was on the outside alone, but also absent from the assembly this week are China, India, Japan, Russia, and Israel, to name but a few.

Why? The new diplomacy is cloaked in moralism, claiming to represent the rights of human beings as the nonprofits and smaller states define them. Below the surface are attempts to gain power and leverage in the new world order, and to contest the influence of the United States.

For years, there have been claims that globalists or internationalists sought to create a new world order, one that did not respect the sovereignty of individual nations. Although these claims usually sounded like silly conspiracy theories, the new diplomacy suggests there is some basis for those fears. There are persistent and committed nonprofits who have commandeered the attention of previously powerless states to pursue a global governance agenda.

Our allies must understand that the United States, built upon individual freedom and limited government, does not cede sweeping powers even to its own officials. It will not be easy or popular, but the United States is right to oppose the International Criminal Court and other elements of the expansive new diplomacy agenda. There is more at stake here than meets the eye.

Universal injustice (San Jose Mercury News and BayArea.com) May 16, 2002

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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We have all come to recognize names like the Gaza Strip and the West Bank as battlegrounds in the Middle East. But did you know that the war is also being fought in a Belgian courtroom, with criminal proceedings against Israeli Prime Minister Ariel Sharon scheduled to resume there this week?

If you find that curious, so did the International Criminal Court of Justice, which ruled in a similar case in February that Belgium could not issue an arrest warrant for an official of the Congo. Still the strange wheels of international justice continue to turn not only in little Belgium, but elsewhere, in ways that frustrate and complicate political situations like the volatile Middle East.

If the United States is the world’s police force, then Belgium apparently aspires to be its courtroom. In an interesting case study of a larger problem, Belgium’s law of universal jurisdiction purports to give it criminal authority over war crimes, genocide and crimes against humanity anywhere in the world, regardless of whether Belgium has any connection with the matter.

Remarkably there are about 30 of these cases against Sharon, Arafat, Fidel Castro and others, and Henry Kissinger has also received a summons in Paris from a French judge over American policy in Chile 30 years ago.

A new trend seeks to turn complex international political, diplomatic and military problems into criminal and legal matters. The leaders in this movement are largely non-profit organizations and European states that are focused on the single issue of human rights. Unable to achieve their agenda in other ways, they have championed bold expansions of international law, trying to draw global leaders into criminal courts.

This notion of criminal prosecutors without boundaries trying Arafat and Sharon in European courts might seem like a silly nuisance, but in fact it exacerbates international turmoil.

The International Court of Justice recognized the problem and, in a move that should have halted these misguided efforts, ruled that diplomatic immunity precluded bringing foreign officials before courts outside their own country.

The court’s president went further, noting that the notion of universal jurisdiction has not been extended to the wide range of crimes for which Belgium and other seek to use it. One can only hope the Belgian court will read the International Court of Justice case carefully and understand that its principles do not just apply to the Congo official, but to all of its efforts to try international leaders such as Sharon.

The next chapter in this saga may be at the new International Criminal Court. It, too, seeks to assert universal jurisdiction over crimes and, in an amazing stretch of authority, it purports to be able to try citizens on non-party states, such as the United States.

The International Criminal Court claims to respect national courts, giving them the first option of handling a matter. But if, say, Israel was found “unable or genuinely unwilling” to prosecute Sharon, the Criminal Court could step in. This is precisely what happened in Belgium: When Israel did not find Sharon criminally responsible, the court of universal jurisdiction stepped in anyway. Because Israel is not a party to the International Criminal Court, and the Palestinian territory is not a state, the Sharon case would not be prosecuted by the ICC, but similar cases from other nations could be.

Alleged war crimes by international leaders are inherently political matters and need to be overseen by the United Nations and its Security Council, not by unbounded Belgian or even ICC prosecutors. If a criminal court for a specific situation needs to be created, the Security Council should do so. Otherwise this business of universal jurisdiction will lead inevitably to universal injustice.

This op/ed appeared on Page 8B.

Saying no to a bad idea (Scripps Howard News Service) May 9, 2002

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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When 66 nations and hundreds of nongovernmental organizations celebrated the creation of the new International Criminal Court at the United Nations last month, the chair of the United States delegation was empty.

Just to be sure the message was clear, the State Department delivered a letter to the United Nations this week stating unequivocally that the United States did not intend to participate in the court or be bound in any way by it. What many experts call the most important international institution since the United Nations now moves ahead without the most powerful nation in the world. It is an important moment, ripe with implications.

The major supporters of the court — Canada, members of the European Union and many nonprofits and foundations — have been quick to criticize the U.S. position. One group said it “signals to the world that America is turning its back on decades of U.S. leadership in prosecuting war criminals.” Refusal to participate in the court has been described by some as further evidence of increasing U.S. isolation in the world.

The truth is that the proponents of the court intentionally created an institution that the United States could not support. The United States, which has backed every international criminal tribunal, from Nuremberg and Tokyo following World War II to Rwanda and the former Yugoslavia today, was actively involved in helping develop a permanent court. The United States worked closely with the International Law Commission and others to follow customary international legal principles in creating a court of limited and defined jurisdiction.

But a funny thing happened on the way to the International Criminal Court. A small group of highly committed “like-minded nations,” aided by foundations and nonprofit organizations, developed a concept for a court of much wider jurisdiction and greater powers than ever before conceived. These groups, who do not traditionally lead the development of international law, hijacked the process and moved it onto a fast track. The United States, and other countries, were then presented with a “take it or leave it” plan for a sweeping new court.

The United States is right to be concerned about this new world court. The court’s agenda not only includes the expected war crimes, crimes against humanity and genocide, but it adds a new, undefined crime of “aggression.” With more troops stationed abroad than any other nation, the U.S. military is an obvious target for the court. Rather than the U.N. Security Council referring cases to the court, those highly political decisions will be made by an independent prosecutor. Most amazing, the court purports to have universal jurisdiction, even over citizens of states that do not sign the treaty. These are all huge leaps from traditional international law, and from early proposals for the court.

Do not be surprise when American officials are investigated or even charged by the court. Despite this clear notice that it will not be part of the court, U.S. government officials, military officers and soldiers, even corporate executives, could all be investigated and charged under the court’s exceptionally broad jurisdictional provisions. If this seems farfetched, consider that efforts have been underway for years to bring former Secretary to State Henry Kissinger before a foreign or international court for actions committed during the Cold War.

Of equal concern is the process by which the court was created. Although it is call an “international” court, ony 66 states of the approximately 190 nations in the United Nations have ratified it. Major powers like the United States, China, India, Japan and Russia are not taking part. In fact, outside of Europe and Africa, very few regions of the world are well-represented among the founders of the court. It is certainly possible that this court, which purports to have universal jurisdiction, will be created by fewer than half the nations of the world, possessing less than one-fourth of the global population.

The U.S. letter delivered this week was, on the surface, largely a legal and symbolic matter, reaffirming the U.S. position that had been known for some time. In another sense, it signals the U.S. unwillingness to be maneuvered by these small and medium-sized European states, and the many nongovernmental organizations, which have their own agenda for the world. It is not an agenda that will serve America well. Yet without the participation of the United States, China, and other world powers, it may not effectively serve anyone.

The International Criminal Court — the United States Sends Regrets (Knight-Ridder) April 30, 2002

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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They threw a party at the United Nations recently, but the United States did not attend. The hoopla, celebrated by sixty-six nations and hundreds of nongovernmental organizations, marked the birth of the new International Criminal Court (ICC), but the United States, by refusing to ratify the treaty creating the court, sent its regrets. The establishment of a major world court without U.S. participation opens a new and troublesome chapter in international law and diplomacy.

Only a few years ago, the United States would have been expected to support the new court. Most of America’s traditional allies, including Great Britain, Canada, and its European friends, are key participants. The United States has been a major supporter of the temporary international criminal tribunals for the former Yugoslavia and Rwanda (precursors of the permanent ICC) and was one of the nations helping to shape the new court.

But a funny thing happened on the way to the International Criminal Court. A group of “like-minded nations” became highly committed to a court with far more sweeping powers than ever before seen or envisioned, and, in the end, they hijacked the process, rushing past U.S. concerns. The Clinton administration was ambivalent, but the Bush administration has been steadfastly opposed, and rightly so.

There is plenty not to like about the ICC. Although the court’s primary agenda is war crimes, crimes against humanity, and genocide, it also has jurisdiction over a new, undefined crime of “aggression.” With troops stationed around the world, the U.S. military has reason to be concerned. Instead of cases being referred to the court by the U.N. Security Council, an independent prosecutor will make those highly political decisions. Amazingly, the ICC purports to have jurisdiction over citizens of countries that do not participate in the court, an unprecedented expansion of international law.

Why should Americans care? For one thing, it is highly likely that Americans will be investigated or charged as criminal defendants. Government officials, military officers, and soldiers–even corporate executive–are all possible targets. Another concern is that defendants cannot rely on the right to a jury trial, protection against unreasonable searches, and many other protections afforded by the U.S. Constitution. With considerable anti-American sentiment attending the creation of the court, the ICC could easily become a forum for trying U.S. military and national policy as criminal matters.

In a larger sense, Americans should also be concerned that sixty-six nations, out of the nearly two hundred in the world, have railroaded the formation of this court. Although its humanitarian purposes may be noble, a criminal court of universal jurisdiction created by one-third of the nations of the world, representing one-sixth of its population, constitutes a major power play. The party at the United Nations was not just about a court; it was also a celebration of small and medium-sized nations and hundreds of nonprofit organizations attempting to level the playing field with the United States and other world powers.

Military tribunals (Scripps Howard News Service) December 5, 2001

Posted by daviddavenport in Newspaper Columns/Essays, Op/Eds.
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To read the headlines, you would think President Bush, in proposing military tribunals to try non-citizen terrorists, was planning to cancel the Constitution and lay off the Supreme Court. Both the New York Times and Washington Post were outraged. Senators, comparing the plan to justice in a Third World republic, scheduled Attorney General Ashcroft for hearings this week, while 39 congressional members signed a strongly worded letter of opposition.

Fortunately the American people tend to be more sensible than the media and legislative elites. In a recent ABC News/Washington Post Pool, 59 percent of Americans supported the use of military tribunals, and the number increased to 64 percent when it was disclosed to participants that President Bush favored the measure. Remarkably, this support held broadly across political lines, from 52 percent of liberals to 58 percent of moderates and 66 percent of conservatives.

Though you’d never know it from the public debate, military tribunals do not raise a question of justice versus injustice. To the contrary, military tribunals constitute one among many legitimate forms of justice that might be used in particular circumstances. The real question is what form of justice is appropriate for trying non-U.S. citizens accused of terrorist attacks. When you consider the three primary judicial approaches available for such difficult work, you begin to see military tribunals in a different light.

One option – though not, as many assume, the only one — would be to try the terrorists in ordinary American courts. Of course geography presents one set of challenges. Would we establish the U.S. District Court for Afghanistan, or example, or bring the terrorists to America for trial? The sheer scale of the matter is another problem. How could already crowded U.S. courts take on thousands of new cases at one time? Then, too, there are the niceties of American criminal procedure, which do not seem well suited to war and terrorism. When we enter a Taliban cave, should we warn all present that anything they say will be used against them in court, and that they are entitled to have an attorney present? Just think of the marshals, prosecutors, judges and jurors whose lives would be at risk, perhaps forever, in carrying out such trials.

Another choice would be the creation of an international criminal tribunal, as has been done in Yugoslavia and Rwanda. Unfortunately the history of these tribunals is mixed at best. Even the formation and staffing of such a court is subject to the vagaries of international politics and, in operation, their results have been limited and very expensive. In Yugoslavia and Rwanda, over a half-billion dollars has been spent to indict some 150 individuals through painfully slow processes. Ironically, international criminal courts, often supported by American media and political elites, do not provide many of the civil liberties that concern them about military tribunals.

Which brings us to military tribunals, an option the president has created by executive order. These have been used from the Civil War through World War II, and are designed to provide justice under the difficult circumstances of war. They allow for expedited and private proceedings before three military judges. These courts provide many safeguards for the defendants, but certain protections, such as the hearsay rule, or a public trial, are not guaranteed. Most of the protections not used are really designed to guide the way U.S. law enforcement officials gather evidence, which is not a concern in war. If military tribunals have been used effectively in the past, what is all the hue and cry about? To some degree it is about short memory and a generation of leaders that has not experienced the exigencies of war. It is also about the shadowy nature of war on terrorism and how you bring it to a close. And, yes, the shouting is also about politics, when many in Congress peeved that the president did not consult them prior to issuing his executive oder.

In the end, Chief Justice William Rehnquist was right when, in his book on wartime civil liberties, he wrote: “In any civilized society the most important task is achieving a proper balance between freedom and order. In wartime, reason and history both suggest that this balance shifts in favor … of the government’s ability to deal with conditions that threaten the national well-being.”

Military tribunals are a legitimate means of achieving that task and they would provide all the justice the terrorists deserve, and then some.