Just Above Sunset
May 9, 2004: Chickens coming home to roost, or the cliché of your choice...

Home | Question Time | Something Is Up | Connecting Dots | Stay Away | Overload | Our Man in Paris | WLJ Weekly | Book Wrangler | Cobras | The Edge of the Pacific | The Surreal Beach | On Location | Botanicals | Quotes

In the issue of September 7, 2003 you will find one of the early opinion columns on what might be called Diplomacy by Humiliation, an examination of how by careful orchestration of insults and snubs, our government seemed to be attempting a sort of “top dog” alpha-male way of establishing undisputed power in this chaotic world. 


Think of it like sports – if you humiliate the other team, that team loses its will to challenge you, and if you humiliate your allies, they will allow you to do what you want, as their powerlessness and insignificance shames them to a point where they dare not suggest alternatives to anything you want to do. 


Well, it’s a theory.


In passing I referred to the New York Times profile Christopher Marquis did on John Bolton, explaining how this particular Undersecretary of State was driving the State Department nuts – visiting world capitals trying to sew together a global defense against weapons proliferators, but mainly to exempt Americans from the newly created International Criminal Court.


"Even the most forthright of us have to have a certain reserve, a certain respect, courtesy and understanding that you're dealing with politics and not theology," said Robert E. White, president of the Center for International Policy and a former ambassador to El Salvador. "The whole point of diplomacy is to gain your ends without giving offense."


Well, to many that seemed just what Bolton was doing, offending everyone in sight, on purpose.  But this may have paid off, or maybe it didn't.


Consider this -


Do the Right Thing

Keeping the ICC out of Abu Ghraib.
By Phillip Carter – SLATE.COM  -
Posted Friday, May 7, 2004, at 2:20 PM PT

Carter points out that when they are eventually prosecuted, the accused guards at Abu Ghraib prison in Iraq will present a “tremendous challenge” for the American justice system.


In addition to producing verdicts based on the evidence, our courts must produce verdicts that will satisfy the world's desire for justice in this case. U.S. military and civilian courts can certainly manage the complicated evidentiary and procedural issues sure to arise during these trials.  But it's not clear that the world will accept our courts' verdicts—particularly if some of the soldiers and intelligence officers are acquitted.  In light of this case's importance for the perception of America around the world, an international consensus that justice has been achieved matters as much as—if not more than—what happens inside the courtroom.


Well, one option to stratify the rest of the world would indeed be to turn to the International Criminal Court.  But we refused to join.  And we pressured many other countries to agree to never cooperate with this court in any action against US soldiers or citizens.  They agreed.  We were prepared to end all foreign aid if they did not.  That was a no-brainer for the likes of Egypt and the others.


The problem, Carter points out, is that we may find ourselves subject to the jurisdiction of this court in spite of all we did to undermine it, thus “trumpeting the message worldwide that American justice is inadequate to punish American criminals.”


How could this be so?


Here’s how:


The ICC was created by the Rome Treaty in 1998, with jurisdiction to try "the most serious crimes of concern to the international community": genocide, crimes against humanity, war crimes, and the crime of aggression.  In theory, the court was supposed to supplant ad hoc tribunals such as the ones put together to try war criminals in Rwanda and the former Yugoslav republics.  In a number of ways, the abuse at Abu Ghraib presents the model ICC case.  The defendants hail from one country; the victims from another.  The acts were committed during a military occupation following a war of dubious legality.  And the acts, at first glance, might constitute war crimes under both the Rome Treaty and the Third Geneva Convention.


President Clinton signed the Rome Treaty in 2000 with strong reservations, largely over the prospect of U.S. soldiers being hauled before politically motivated ICC prosecutions.  He signed nevertheless, hoping that American diplomats would work within the ICC to ensure this prophecy did not come true.  However, Clinton never submitted the Rome Treaty to the Senate for ratification and in May 2002, President Bush withdrew the nation's signature from the treaty altogether but pledged that the nation's withdrawal from the ICC would not result in a lack of justice for American misconduct abroad.  In lieu of the ICC, the United States pledged to prosecute American service members and civilians for gross misconduct wherever it should occur.


Ah, there’s the problem.


How can the ICC get jurisdiction in this matter?


Two main conditions must be met for ICC jurisdiction: First, the acts must qualify as serious enough to merit international attention.  The Rome Treaty explicitly includes crimes such as "torture or inhumane treatment," "committing outrages upon personal dignity, in particular humiliating and degrading treatment," and "committing outrages upon personal dignity."  But ICC prosecutors must also find that the acts were "committed as part of a plan or policy or as part of a large-scale commission of such crimes" in order to claim jurisdiction.  It's not yet clear that the latter was the case at Abu Ghraib.


Second, ICC prosecutors can only act when a nation with jurisdiction (either the United States or Iraq in this case) fails to investigate or prosecute the incidents.  This provision (found in Article 17 of the treaty) is known as the "complementarity" principle.  It ensures that ICC prosecutions will complement—but not override or pre-empt—domestic prosecutions.  American diplomats fought hard for this provision's addition to the treaty, largely on the assumption that American prosecutorial efforts would always satisfy the complementarity requirement.  So, even if we had been signatories to the Rome Treaty, we might have forestalled an ICC prosecution.


Got it?  If we move too slowly, or inadequately, then we could hauled up in front of this court we never agreed to – maybe.




Unfortunately, American prosecutors appear to be moving both slowly and inadequately in this case.  Military prosecutors have charged only the six lowest-ranking military police accused of actually committing the abuses at Abu Ghraib.  Thus far, their commanders have been let off with slaps on the wrist in the form of career-ending administrative reprimands.  Nor has the Justice Department rushed in to prosecute any of the CIA employees or the private contractors involved in the abuses, whose involvement has been documented by the Army.  (John Ashcroft has just announced that they may eventually be prosecuted, however.)  And American-advised Iraqi prosecutors have not stepped in either, hobbled by a June 2003 order giving home countries like the United States exclusive jurisdiction over its soldiers and contractors.


This inaction undercuts the arguments made by the Clinton and Bush administrations against the Rome Treaty and violates the justification for our ultimate refusal to participate in the ICC.  Arguably, the United States has not lived up to the promise it made when it withdrew from the treaty—to zealously police and prosecute its own personnel for transgressions committed overseas.


Well, drat!


And Carter points out that even if the United States is not part of the ICC and Iraq is not a member, we might still find our troops “wrangled into ICC jurisdiction” by a provision that lets non-ICC member states refer cases to it anyway.  He thinks once the Iraqi government takes sovereignty on June 30, it might decide to do just that, “especially if the Iraqi people demand international justice for the crimes at Abu Ghraib.”


We will no doubt tell this new Iraqi government that they really, really ought not to do that, but if sovereignty means anything, that is their call, not ours.  Well, come the close of day on June 30, sovereignty may not mean anything there, of course.


Carter sees two choices here – we can continue to prosecute a fraction of those involved, with the risk of an ICC prosecution in the future.  Or we can decide to preempt this court’s jurisdiction by getting serious. This means getting a lot more agreesive.


"More aggressive" here means that the United States should do three things immediately: We must prosecute the military and civilian leadership involved, in addition to the junior soldiers who allegedly carried out the abuses at Abu Ghraib; second, we should appoint an independent commission (not just a Pentagon-sponsored panel, as suggested by Defense Secretary Donald Rumsfeld to Congress) to investigate these abuses and make recommendations on how to prevent these staggering breaches in military discipline from recurring in the future; finally, we should evaluate our stance toward prisoners of war and enemy combatants generally, with particular attention to how cases like Guantánamo and Abu Ghraib are viewed around the world, and how this stance may create ambiguity in the field for soldiers charged with physically dealing with prisoners.


I doubt any of that is likely.


We, of course, can keep a lid on things from here on out.


It seems Halliburton subsidiary Kellogg, Brown, and Root (KRB) is pulling the plug on any emails and attachments our military folks might send from Iraq to anywhere else in the world, apparently at the request of the Department of Defense.   No more digital images for now.  KRB provides net connectivity for all our camps and bases in Iraq and will cut off all “inessential” access to email and the net for the next 90 days.  I guess that will help a bit.


You will find this on a web log from one of our folks in Iraq –


I might be getting transferred within the next week to another post.  At the very least, KBR is not allowing any private computers on their system for the next ninety days.  There might be one other option, but if you don't hear from me for a while...




But the damage is done.


Anyway, should we follow Carter’s advice and look at leadership, who, below Rumsfeld the top generals is there to worry might make us look bad?  Who do we need to know about to preempt the ICC being called in?


Lots of folks are pointing to this from the New York Times – because this weekend their remporter Fox Butterfield (great name!) adds something just odd -


The experts also point out that the man who directed the reopening of the Abu Ghraib prison in Iraq last year and trained the guards there resigned under pressure as director of the Utah Department of Corrections in 1997 after an inmate died while shackled to a restraining chair for 16 hours.  The inmate, who suffered from schizophrenia, was kept naked the whole time.  The Utah official, Lane McCotter, later became an executive of a private prison company, one of whose jails was under investigation by the Justice Department when he was sent to Iraq as part of a team of prison officials, judges, prosecutors and police chiefs picked by Attorney General John Ashcroft to rebuild the country's criminal justice system.


Not good.  Not good at all


Josh Marshall digs even deeper and says that on page 6 (link through then scroll down to page 6) of the latest edition of the Utah Sheriff's Association newsletter, The Utah Sheriff, is a picture of McCotter on "a tour of the death house at Abu Ghraib Prison" with Deputy Secretary of Defense Paul Wolfowitz.  The figure in the background appears to be Brig. Gen. Janis Karpinski.


Oh, man.  This is going to be hard to contain.


And in next week’s edition of Newsweek – well – their international editor, Fareed Zakaria, lays it all out.


See The Price of Arrogance

In a war that could go on for decades, you cannot simply detain people indefinitely on the sole authority of the secretary of Defense


Since 9/11, a handful of officials at the top of the Defense Department and the vice president's office have commandeered American foreign and defense policy.  In the name of fighting terror they have systematically weakened the traditional restraints that have made this country respected around the world.  Alliances, international institutions, norms and ethical conventions have all been deemed expensive indulgences at a time of crisis.


Within weeks after September 11, senior officials at the Pentagon and the White House began the drive to maximize American freedom of action.  They attacked specifically the Geneva Conventions, which govern behavior during wartime. Donald Rumsfeld explained that the conventions did not apply to today's "set of facts."  He and his top aides have tried persistently to keep prisoners out of the reach of either American courts or international law, presumably so that they can be handled without those pettifogging rules as barriers.  Rumsfeld initially fought both the uniformed military and Colin Powell, who urged that prisoners in Guantánamo be accorded rights under the conventions.  Eventually he gave in on the matter but continued to suggest that the protocols were antiquated.  Last week he said again that the Geneva Conventions did not "precisely apply" and were simply basic rules.


The conventions are not exactly optional.  They are the law of the land, signed by the president and ratified by Congress.  Rumsfeld's concern—that Al Qaeda members do not wear uniforms and are thus "unlawful combatants"—is understandable, but that is a determination that a military court would have to make.  In a war that could go on for decades, you cannot simply arrest and detain people indefinitely on the say-so of the secretary of Defense.


The basic attitude taken by Rumsfeld, Cheney and their top aides has been "We're at war; all these niceties will have to wait."  As a result, we have waged pre-emptive war unilaterally, spurned international cooperation, rejected United Nations participation, humiliated allies, discounted the need for local support in Iraq and incurred massive costs in blood and treasure.  If the world is not to be trusted in these dangerous times, key agencies of the American government, like the State Department, are to be trusted even less.  Congress is barely informed, even on issues on which its "advise and consent" are constitutionally mandated.


Leave process aside: the results are plain.  On almost every issue involving postwar Iraq—troop strength, international support, the credibility of exiles, de-Baathification, handling Ayatollah Ali Sistani—Washington's assumptions and policies have been wrong.  By now most have been reversed, often too late to have much effect.  This strange combination of arrogance and incompetence has not only destroyed the hopes for a new Iraq.  It has had the much broader effect of turning the United States into an international outlaw in the eyes of much of the world.


So the implication is that if you don’t consider the top guys, and now that would include Ashcroft too, then the pressure for outside adjudication is going to be awesome – and kind of shock and awe we never anticipated at all.


What if we just throw Rumsfeld to the wolves – and buy time, if not some good will, that way?


Try this:   


If Bush fires Rumsfeld, he would be admitting that he'd made a mistake in keeping Rummy onboard for so long or in hiring him for the job to begin with.  Somewhere along the line, someone (Karl Rove?) advised Bush never to admit making a mistake.  Up to a point, this was sound advice.  To the extent Bush gets high marks in polls, they are chiefly for such traits as confidence, conviction, and consistency.  He has to appear righteous—and right—to maintain these marks.  For him to dump Rumsfeld—especially after saying several times that he'd keep him in his cabinet—would erode his entire image.  The basis of his attacks on John Kerry (that he's a "flip-flopper") would seem hypocritical; the edifice of his re-election campaign could crumble.


If a president's (or presidential candidate's) most appealing slogan is, "I say what I mean and I mean what I say," the appeal starts to wash away if he changes his mind and retracts his words, especially if he does so under pressure.


Bush has other pressing reasons to keep Rumsfeld.  Who would replace him?  The Pentagon would be thrown into turmoil.  By the rules of succession, the deputy secretary of defense would step up as acting secretary.  But the deputy, Paul Wolfowitz, has even less credibility on Capitol Hill. In fact, Rumsfeld's entire inner circle is tainted—if not by the Abu Ghraib scandal, then by the controversies over the Iraq war and the "stovepiping" of false intelligence that led up to it.  Confirmation hearings for a new secretary would be a golden opportunity to revisit each of these controversies in great detail, with an election just months away.


No way out?


I know four of my regular readers are lawyers, and may have done some reading in international law.  Forward any suggestions to… Cheney?  No.  Karl Rove?  No.  Colin Powell, the man out of the loop?  No.  Condoleezza Rice?  No.


Oh well.  Hang on - it’s going to be a bumpy ride.


Copyright © 2003, 2004, 2005, 2006 - Alan M. Pavlik
The inclusion of any text from others is quotation
for the purpose of illustration and commentary,
as permitted by the fair use doctrine of U.S. copyright law. 
See the Details page for the relevant citation.

This issue updated and published on...

Paris readers add nine hours....