ShareThisBy THOMAS P.M. BARNETT
Scripps Howard News Service
Almost six years after 9/11, the United States still struggles to create an alternative judicial system to prosecute terrorists for war crimes as "unlawful enemy combatants."
Meanwhile, the International Criminal Court, set up in 2002 to adjudicate such individuals for crimes against humanity, continues to grow in stature, competency and --most importantly -- actual cases. So the question begs: Why must America construct its own war-crimes court when the world seems content with the ICC?
Last week, two U.S. military judges separately tossed out cases against two alleged war criminals currently held in a military prison in Guantanamo Bay, Cuba, yet again throwing the Bush administration's latest scheme into serious disarray. Many in Congress are already questioning the recently passed Military Commission Act, with Sen. Arlen Specter, R-Pa., complaining to The New York Times of "too many shortcuts" in a legal war that so far hasn't resulted in any trials.
In the meantime, condemnations continuously roll in from all corners of the globe regarding a host of questionable American practices: the suspension of habeas corpus; the holding of ghost detainees who disappear into the paperwork; the ordering of "extraordinary renditions," by which suspects are deposited with allies who have long histories of torture; and the extraction of confessions by methods right out of the Salem witch trials.
And what of America's relationship with the ICC?
It's strained at best, as the U.S. government has systematically strong-armed roughly a hundred nations into signing bilateral immunity treaties, making us exempt from ICC prosecution. We worry that American troops and even government officials will be subject to war-crimes accusations following future military interventions.
That's not an unreasonable fear, so I support these "interventionary pre-nups," as I like to call them. There's little incentive in serving as the world's "marshal" if rounding up the bad guys gets you in legal trouble on a regular basis.
But having achieved such blanket immunity from the vast majority of states likely to be on the receiving end of a U.S. military intervention, why should America remain so aloof from the ICC? After all, the court's purview truly extends only to lawless or rogue states that refuse, or are unable, to police their own. So far, all of the ICC's cases have involved the very same states from which America has obtained or sought ICC immunity.
The Bush administration's stubborn stance, continued from the Clinton years, retards the development of global case law concerning the terrorists, warlords and dictators that America routinely targets in this long war against radical extremism. Not surprisingly, our go-it-alone strategy undercuts our moral authority around the world. I mean, if our own judicial system can't stomach much of this, how can we expect to win any hearts and minds abroad by mimicking the human-rights abuses of the very same authoritarian regimes (e.g., Saudi Arabia, Egypt) targeted by our lawless enemies, the Salafi jihadists?
The ICC, which was set up as a permanent version of the U.N.-sponsored International Criminal Tribunal for the Former Yugoslavia, is -- in many fine ways -- a logical descendant of the American-designed Nuremberg war-crimes court constituted after World War II to try Nazi officials. With 104 signatory states, the ICC possesses a well-credential system for adjudicating and imprisoning these bad actors.
What the ICC critically lacks is a credible mechanism for snatching these criminals and hauling them before the court once they've been indicted. By definition, all typically remain beyond the reach of accepted law, hiding out in either failed states or behind rogue dictatorships.
Oddly enough, the United States possesses just such a mechanism in our armed forces, whose global reach allows us to snatch and grab these bad actors with relative impunity, only then to shunt them into our highly controversial alternative judicial system.
You don't have to be a grand strategist to see where I'm going with this: once America gets the ICC comfortable enough with its unique "marshaling" capability, there's no reason why our "chocolate" and the ICC's "peanut butter" can't go well together. Indeed, figuring out how to stitch these two systems together is logical and inevitable.
How come we never discuss this?
America remains mired in its post-9/11, "Dirty Harry" phase. But until we move beyond that us-against-the-world mindset, we'll never achieve that us-plus-the-world cooperation -- much less competency -- to effectively police our common enemies.
(Thomas P.M. Barnett is a visiting scholar at the University of Tennessee's Howard Baker Center and the senior managing director of Enterra Solutions LLC. Contact him at tom@thomaspmbarnett.com.)
