THE INTERNATIONAL CRIMINAL COURT: THE EMPIRE OF LAW VS. THE UNITED STATES
By Carlos Fuentes
Carlos Fuentes, the Mexican novelist and diplomat whose books include
the seminal ''The Death of Artemio Cruz,'' serves on the editorial advisory
board of New Perspectives Quarterly (www.digitalnpq.org).
This article will appear in the fall issue of NPQ.
MEXICO CITY -- My first diplomatic experience occurred in a now very
distant 1950 when I served in Geneva as secretary to the Mexican member
of the Commission on International Law of the United Nations, Ambassador
Roberto Cordova, a stellar career diplomat in a Mexican foreign service
corps which at that time had, like MGM, ''more stars than the sky.''
JUDGMENT AT NUREMBERG
Those events echo today in my memory because the principal theme that
occupied Cordova and the Commission on International Law in 1950 had to
do with the legitimacy of the processes initiated by the victorious powers
of World War II against conquered Nazi Germany. The dispute was clear.
Did an ex-post-facto tribunal -- that is, a tribunal created after the
crimes themselves -- have the right to judge the deeds of the past? Didn't
Nuremberg violate the cardinal principle of criminal law established since
the Romans, nullum crimen nulla poena sinae previa lege penale -- that
is, no crime and no punishment without a law that precedes it? Or, on
the contrary, didn't the fact that the crimes being judged -- atrocities,
massacres and executions without due process -- were already crimes before
World War II give full legitimacy to the Nuremberg Tribunal? And in any
case, weren't the crimes of the Nazi regime so repugnant as to justify
an ad hoc tribunal to judge the Hitler regime as well as the individuals
who committed these crimes in its name?
The principal promoter of Nuremberg and of the legislation of war crimes
in 1945 was the United States of America. Soviet reticence was understandable,
and its categorical demand to cut off the heads of the leaders of the
Nazi regime, including those who had escaped the hanging noose, was a
cover up of Stalinist crimes. Meanwhile, England, with absolute phlegm,
didn't allow the deeds of ''Bomber'' Harris, the destroyer of Dresden
and the promoter of the allied air victory with losses that were greater
for Britain than for Germany, to prick its conscience in the least.
The United States, on the contrary, arrived at Nuremberg and later to
the Commission on International Law as the flag bearer of international
criminal jurisdiction, an integral part of a global order founded in and
on the law. Undimmed by Hiroshima, the United States emerged from World
War II as the luminous conscience of the ''good war,'' the moral war,
won thanks to its resolute participation against the Axis -- this, of
course, of Evil -- Rome-Berlin-Tokyo. In victory, the United States became
the principal promoter of international organizations as an indispensable
ballast against the repetition of the atrocious events of 1939 to 1945.
'THE MOST DANGEROUS DISPUTE'
The Cold War warmed this American internationalist enthusiasm, giving
it a defensive turn. In the deaf combat against communism and its citadel,
the Kremlin, Washington needed allies: allies willing (Western Europe,
situated on the borders of Soviet power) or allies by force (Latin America
aligned for better or for worse with the anti-Soviet politics of Washington).
President Ronald Reagan called the U.S.S.R. ''The Empire of Evil.'' Good
or evil, it was an empire with feet of clay that shattered nosily with
the Berlin Wall in 1989. President George Bush the elder declared at that
time that an era of ''a new international order'' was beginning, that
is, a multilateral order with various centers of power (above all, the
United States, Europe and Japan, the economic locomotives of the new order)
and the supremacy of international law.
It has not been so. The disappearance of a comparable adversary, the U.S.S.R.,
has left the United States as the only super power.
A clear consciousness of the limits of imperial power, legal barriers
and treatment of allies with trust and respect distinguished the presidency
of a true statesman, President Bill Clinton. Today, any notion of limits
to the unilateral will of the White House has disappeared. And nothing
demonstrates that better than the frontal attack of the American government
against the International Criminal Court which has just been established
by the immense majority of the global community, opening up, as Quentin
Peel wrote in London Financial Times, ''the most dangerous and divisive
dispute between Europe and the United States, after Sept. 11.''
THE BEGINNINGS OF THE COURT
The International Criminal Court is the result of the terrible experiences
of the 20th century: massive violations of human rights; the Nazi Holocaust;
the Stalinist gulag; the savage dictatorships of Latin America, Africa
and Asia; apartheid in South Africa; My Lai and the American atrocities
in Vietnam; more recently, the crimes against humanity in Rwanda and the
former Yugoslavia (not to mention Chechnya).
The community of nations has been responding to these crimes since the
judgments at Nuremberg, but always departing from this principle: Criminal
trials are always in the first instance exclusive to the internal laws
of each nation. Only when these crimes affect citizens of a third country
(the assassination of a Spaniard by the Pinochet dictatorship in Chile)
or if they are committed outside the territory of the crime's author (the
assassination of the Chilean Socialist Orlando Letelier in the streets
of Washington by agents of Pinochet) does the action proceed from an external
jurisdiction against an external accused as the Spanish judge Baltasar
Garzon has been doing.
The International Criminal Court (ICC) adheres entirely to these principles;
even in instances specific to the United States, its statute clearly states
that neither internal American jurisdiction nor the safeguards of American
military personnel are affected.
I will try to summarize the principles that govern the court:
-- The ICC will only hear ''widely spread and systematic atrocities.''
-- In the first instance, these crimes will be investigated and judged
by national authorities.
-- The ICC will act only if the national courts cannot or will not.
-- The judges and lawyers of the ICC will be selected on the basis of
competency and impartiality. Given that any political trial can hide vendettas
or be a cover up for the internal incompetence of a given nation, the
signatory countries have the right to remove any partial judges or prosecutors.
THE USA AGAINST THE WORLD
In this way, the court offers the maximum guarantees within a framework
of laws to the United States of America, the only superpower in a world
that differs so greatly from that imagined by the elder Bush at the end
of the Cold War. The trauma of Sept. 11 has given international relations
a new turn. Profoundly wounded, the United States demands and receives
international support in its battle against terrorism. Europe responds
by aiding the United States in Afghanistan. But when Europe asks the United
States to support a worldwide legal body that can be an effective weapon
against terrorism, the United States refuses to participate.
This is the danger, this is the anguish, this is what astounds. Despite
all the aforementioned safeguards, President George W. Bush's government
says no. And it says no in order to affirm that the United States not
be subject to a law or jurisdiction above or beyond those of the United
States itself. Paradox of paradoxes: in an era of globalization, when
the death of national sovereignty is celebrated or lamented, whatever
be the case, the maximum world power affirms its own sovereignty to a
degree without precedence, at least since the era of the Roman Empire.
Without limiting powers or potential balance, the United States tells
the world: My sovereignty is inviolable. Yours isn't. Or, there is one
rule for the USA and another for the rest.
U.S. Secretary of Defense Donald Rumsfeld has spelled it out. It is a
question of ''defending our people, defending our interests, defending
our way of life.'' Against Al Qaeda? Against terrorism? Against crime,
subversion, Martian invaders, mutants planted like cabbage heads in the
American suburbs, even against local terrorists like Timothy McVeigh?
No. Where Rumsfeld sees the greatest danger for the American people is
in the International Criminal Court. Are the enemies of the United States
the 74 states that have signed their commitment to the court? Is the entire
world the enemy of the United States? Obviously it is, for the right wing
of the government in Washington. The battle against the court has little
to do with its merits (abundant) or its dangers (nonexistent). It has
to do with the internal struggle for power within the Bush administration
and signifies the triumph of the most reactionary faction of the administration
(that of Vice President Richard Cheney, Secretary Rumsfeld, and Attorney
General John Ashcroft) against the isle of internationalist reason represented
today by Secretary of State Colin Powell. Read the virulent rightist rejection
of the court as a rejection as well of Powell, whose days, according to
the general opinion of European diplomacy, are numbered.
The Americans can leave the court, but we cannot. The decisive words of
Javier Solana, charged with the security and foreign affairs of the European
Union, should be the guide not only for the Europeans but for all of us.
For our own benefit and for that of the United States, he says, it behooves
us to remind Washington that the more imperial its politics, the more
vulnerable it will be. That if it can't rely on the international community
beginning with its own allies, the United States will build its power
on air. That nothing is better for the United States after Sept. 11 than
to strengthen the empire of law.
BUSH THE TREATY ASSASSIN
But you can't bank on that. The International Criminal Court is only the
last in a long series of irresponsible decisions against the elder Bush's
''new international order'' that the younger Bush has ordered decapitated.
Everyone is familiar with the list: against the Kyoto Protocol and in
favor of the noxious emission of gases; against the acts on biological
arms; against the prohibition of nuclear experiments; against the Treaty
on Landmines; in favor of oil exploration in the Alaskan ecological zones;
in favor of protectionism for steel and gigantic subsidies for agriculture.
We Latin Americans complain about the scant attention paid to our countries
by the Bush administration. On the contrary, we should congratulate ourselves.
At this moment, to be out of Washington's radar range is almost a health
But my memory returns to Geneva, to the Commission on International Law,
to the immediate post-war period and the image of the United States as
an active promoter of international law and organization, including penal
law. The atrocious crimes of Sept. 11 have more victims than those innocents
assassinated by a blind and destructive intolerance. The United States
has victimized itself by turning its back on the best defense against
terror, which is the law. And Al Qaeda has victimized us all, in crushing
the construction of a global legal order, the only avenue against terror,
but also against the explosive seeds of terror itself: ignorance, hunger,
disease and the poverty of 2 billion human beings on the planet.
(c) 2002, NPQ. Distributed by Los Angeles Times Syndicate International,
a division of Tribune Media Services.
EMBARGOED IN LATIN AMERICA AND SPAIN
For immediate release (Distributed 7/24/02)