Can International Law Evolve?

Martin LeFevre: Can International Law Evolve?

A leading international lawyer representing
defendants in international criminal
tribunals, Guenael Mettraux, says that
Guantanamo detainees should "be placed under
international control and their trials held
on neutral ground." That's a hoot.

Mettraux goes on to say, presumably with a
straight face, that by initiating
international criminal tribunals for
Guantanamo prisoners, the "United States
would reassert its core values and
demonstrate the supremacy of those values
over the evil that has been challenging
them."

What about the suppurating wound of the
prison at Bagram Airfield in Afghanistan?
What about the thousands of people hidden
away in unknown hellholes around the world,
overseen by the overlords of rendition?

To say that Mettraux is being politically
naive and philosophically shortsighted is to
be generous. For as Benjamin Wittes, Senior
Fellow at the Brookings Institution points
out, "only about 800 people have passed
through Guantanamo. The United States
military, since the beginning of the war on
terror, has held literally tens and tens of
thousands of people around the world. So the
focus on Guantanamo as the locus of the
problem of detention was always quite
delusional."

In a terrible irony, people are still holding
out hope that Obama will do the right thing,
even though "the Obama administration has
adopted the Bush Administration's position
that individuals captured by the United
States anywhere in the world can be taken
into custody and held indefinitely without
charge, so long as they're not brought to
Guantanamo," as Tina Foster, executive
director of the International Justice Network
said.

But the first reason the Obama Administration
will never allow "enemy combatants" to stand
trial in an international tribunal is that it
would be political suicide.

America not only upholds an extreme form of
sovereignty; it upholds its sovereignty above
that of all other nations combined.

Second, an international tribunal for
detainees in the "war on terror" would open
up inquiries and investigations into the
illegality of the invasion of Iraq, even if
no Iraqi citizens were put on trial.

Indeed, the entire concept of the "war on
terror," which the Obama Administration has
thrown out rhetorically but held fast to
policy-wise, would come into question.

More to the point, what international
criminal tribunal is going to put CIA
interrogators on trial for threats to kill
one suspect's children and to force another
to watch his mother sexually assaulted?

The revelations coming out of Washington this
week make a mockery of what was already a
mockery: Obama's mandate to fundamentally
change Bush-Cheney foreign policies. The
Obama Administration is making a last ditch
effort to put off the whole issue of
Americans torturing prisoners (even as they
continue the rendition policy of snatching
and sending people to third countries to be
interrogated) until, they pray, it blows
over.

Toward that end, the Obama has appointed a
prosecutor to investigate `rogue'
interrogators who went beyond even the
liberal guidelines for "enhanced
interrogation techniques" of the Bush
Administration.

I guess all this is what Obama meant when he
said during the campaign, "to build a better,
freer world, we must first behave in ways
that reflect the decency and aspirations of
the American people."

Despite the announcement of the criminal
probe, President Obama continues to declare
that on the subject of prisoner abuse and
torture, he "wants to look forward, not back"
at Bush tactics. But there can be no going
forward until there is a reckoning with the
past. As the saying goes: "The past isn't
over; it isn't even past."

The White House is also using the transparent
trick of saying that any prosecutions of
Americans in American courts would be up to
Attorney General Eric Holder, not the White
House. I've lost count, how many layers of
removal from responsibility is that?

Obama is creating a new interrogation unit
for "high-value" detainees, which will be
under the direction of the FBI rather than
the CIA, supervised by his own national
security adviser. And overseen by Jesus
himself.

Barack is trying to pull off a political
trifecta: political sleight of hand by coming
out with a plan (sort of) to close
Guantanamo; having it both ways by inveigling
against torture while continuing rendition;
and throwing the public a bone of a special
prosecutor in hopes the issue will go away.

We're supposed to be comforted by the promise
that all U.S. interrogators will follow the
rules for detainees laid out by the Army
Field Manual. Aren't those the same rules
that were in place when detainees were forced
to stand naked in excruciating positions for
hours, threatened with military dogs, exposed
to extreme heat or cold, subjected to mock
executions, and deprived of food, water, or
medical care? And oh yes, let's not forget
waterboarding.

The phrase "international law" is now, quite
rightly, only spoken with derision. To say
that our indisputably global society has an
increasingly inadequate inter-national legal
structure, is not just to utter an
understatement, but an absurdity.

Examples abound. At the whim of the United
States government, people are being locked up
in Afghanistan without a trial until the end
of the war. The Obama Administration is
beginning to condition the American public
into thinking in terms of at least a decade
in Afghanistan, even as Admiral Mike Mullen,
the chairman of the Joint Chiefs of Staff,
says the situation there is "serious and
deteriorating." Send more troops!

Even a right-winger such as Richard N. Haas,
President of the Council of Foreign
Relations, says Obama should consider
"withdrawing all United States military
forces from Afghanistan and center on
regional and global counterterrorism efforts
and homeland security initiatives to protect
ourselves from threats that might emanate
from Afghanistan."

The law evolves when new paradigms are
recognized. Can the international legal
framework, woefully imperfect as it is,
evolve into an effective, but carefully
constrained global structure of laws for the
regulation of nations and their institutions?
It must.

Rendition, indefinite detention, and military
tribunals, much less invasion, torture, and
"enhanced interrogation" are outside the rule
of the law, no matter how they're dressed up.

The internal laws of a nation, and the
increasingly inadequate quasi-laws between
nations, have had their day. America and
China, the main upholders of sacrosanct
national sovereignty, are spitting against
the wind.

There is a higher law, but we must live or
perish within the laws people make here on
earth. However you define civilization, its
cornerstone is the law. The question we have
to ask ourselves, as cultures disappear and
the old civilizations erode, is whether, in
this global society, we are peoples of law or
not.

For without the law, this hellish jungle we
call the world will only become more and more
unlivable.

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