By Anne-Marie Slaughter
Aug. 4 issue — Uday and Qusay Hussein died in a hail of bullets worthy of the Wild West. The administration proclaimed a great victory. Iraqis were more ambivalent. Said one, talking to the BBC: “I would have been happy if they were captured alive and brought to justice before the Iraqi people.”
Perhaps in the best of worlds, this would be so. But in Iraq these days, the best is often the enemy of the good. America is still at war; its soldiers die every day. And in war, you shoot first and ask questions later.
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Still, it’s tempting to consider how much easier America’s job would be, if only it were seen to be more on the right side of international law. Over just the past week, for instance, the United States has called for the international community to contribute more troops to stabilize Iraq. Those likely to be most willing (France, Germany, India) all said that would require another U.N. Security Council resolution—legal validation, in other words, reflected in a sharing of reconstruction and administrative authority in Iraq. Similarly, big U.S. oil companies told the administration that they could not invest heavily to restore Iraq’s oil production. Reason: the lack of politically legitimate authority in Iraq, coupled with concerns that any contracts signed would not have the force of international law.
Closer to home, the administration yielded to British and Australian demands regarding legal guarantees for trials of their citizens held in Guantanamo. After declaring that the Geneva Conventions did not apply—not to mention the protections of the U.S. Constitution or the Uniform Code of Military Justice—the White House assured its allies that their citizens would not face the death penalty and will be allowed access to an independent lawyer. That’s welcome. But how to justify offering such safeguards for Britons and Australians but not Pakistanis or Kuwaitis?
Imagine, on the other hand, what could happen if the United States acted on the side of international law, rather than against it. Within Iraq, the United Nations could bring in international experts to set up a war-crimes tribunal very quickly—the same experts who have been through this process in East Timor and Bosnia, Argentina and South Africa. They could review the evidence against the men on the U.S. military’s Most Wanted cards and indict the perpetrators, taking testimony from Iraqi victims along the way. The aim then would be to arrest them; if a shoot-out ensued, they would die resisting arrest for horrible crimes, rather than becoming Islamic martyrs who heroically resisted overwhelming American might, at least to some Iraqis. After all, in the Iraq we are trying to build, simply shooting “wanted” men is assassination, not justice.
And take the stalemate between the administration and the oil companies. Were the United Nations more fully engaged, Washington could do as it did in the 1991 gulf war—call on scores of Coalition partners to help stabilize and rebuild the country. Painful a lesson as Iraq may turn out to be, it’s a vital one for America: we may flout international rules when it suits us, but many other countries (including most of our closest allies) regard them as the foundation for a stable and predictable world order. Iraq proves we need them, too.
Looking to the future, the Bush administration and U.S. military might revise their opposition to such international tribunals as the International Criminal Court. The United States has done everything it can to destroy this institution, born just four months ago. Yet it is in many ways an ideal vehicle for advancing global (and American) security. Remember the impact on both international and domestic Serbian public opinion when the International Criminal Tribunal for the former Yugoslavia indicted Slobodan Milosevic as a war criminal and perpetrator of genocide? Suddenly, in the midst of the NATO intervention of Kosovo, he was no longer Serbian President Slobodan Milosevic, but rather, “indicted war criminal Slobodan Milosevic.” Seeking an indictment against Saddam Hussein from an international tribunal would have focused attention not simply on his weapons of mass destruction, which we now cannot find, but also, and equally, on his horrific record of crimes against his own people and the people of other nations. It could do the same for other terrorists and criminals the United States is trying to hunt down, from Osama bin Laden to the thugs currently destroying Liberia. The ICC could even be brought to bear on North Korea or Iran.
In all these cases, the root of the international or regional security problem is one or more individuals who have perpetrated gross crimes against their own people and others. ICC prosecutor Miguel Ocampo—a distinguished Argentine lawyer—is currently deciding which cases to bring. The United States could ask the Security Council to refer the cases of Kim Jong Il or Charles Taylor, or even Saddam himself. The United States may still have time to discover the values of international law, even in Iraq. Any step that would confer legitimacy on the U.S. peacekeeping force would reap rich rewards for America—and, more important, Iraq. It could also mark the beginning of a global effort to establish sane and decent governments worldwide. Law strengthens diplomacy. In the most optimistic scenario, it can obviate sending in soldiers altogether. After all, we don’t really want to live in a global Wild West.
Slaughter is dean of the Woodrow Wilson School of Public and International Affairs at Princeton University and president of the of the American Society of International Law.