War Crimes and Misdemeanors

Yesterday I received an email from the Council on Foreign Relations, announcing the release of a Special Report on "Justice Beyond the Hague: Supporting the Prosecution of International Crimes in National Courts."   The author is David A. Kaye of UCLA Law School, and the report is a well-crafted document arguing that the United States, other like-minded countries, and the philanthropic community ought to do more to national courts in other countries, so that they can investigate and prosecute war crimes and other atrocities. To enhance human rights, in short, we ought to help countries like the Democratic Republic of the Congo, or a post-Qadhafi Libya hold former officials accountable for war crimes or other abuses. Money quote:

The United States shuld put national-level justice at the center of its war crimes policy.  Internally, the United States should reorganize how it helps other governments develop the capacity to investigate and prosecute such crimes. . . . Externally, the United States should take a leading role in fixing and coordinating a currently dysfunctional international approach to national justice in the wake of atrocities."

Sounds laudable, except the report is almost completely silent on whether the United States also needs to do a much better job of investigating and prosecuting U.S. officials who might be guilty of war crimes themselves. After all, a more-than-plausible case can be made that the Bush administration violated international law when it invaded Iraq in 2003, that top officials engaged in war crimes when they ordered the torture of prisoners, and that U.S. reliance on "targeted killings" in Afghanistan, Iraq, and Pakistan is also a violation of the laws of war. I’m not a lawyer and I don’t know if the officials responsible are guilty or not, but it seems clear that our government is as reluctant to tackle that issue as the ones that the report seeks to help

The CFR report acknowledges this problem only once, commenting on page 22 that "the United States . . . must deal with widely-held perceptions, especially abroad, that it failed to hold its own officials accountable for abuses against suspected terrorism detainees." Fine, we need to "deal with" these perceptions, but that suggests a bit of spin control, rather than asking whether these "perceptions" are valid and whether we ought to be doing something concrete in response. You know, like issuing indictments or at least conducting a serious investigation.

Needless to say, this is the sort of pious moralizing that drives lots of people in other countries crazy. The issue isn’t just our reluctance to put former top officials in the dock, it is also our relentless eagerness to preach to others about how they ought to behave, even when we are manifestly unwilling to live up to the same standards ourselves.  

By contrast, if the CFR issued a report saying that the US ought to do more to strengthen national courts both overseas and here at home — even if this meant that a few CFR members might find themselves facing an indictment — that might raise some eyebrows and force some rethinking.  But don’t hold your breath.