Prosecuting the peace
Can international tribunals curb future atrocities or is the intervention of a great power needed?

International Criminal Court

ICC Prosecutor Luis Moreno-Ocampo at the 16 May 2011 Press Conference regarding the situation in Libya

Article Highlights

  • America must decide if it believes that war is an ugly thing, but not the ugliest

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  • As interstate war has declined, death has come from unconventional conflicts

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  • National sovereignty presents a great threat to networks of activists, human rights groups, and the ICC

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"War is an ugly thing, but not the ugliest of things," John Stuart Mill wrote in 1862. Urging British support for the North in the American Civil War, Mill argued that ending slavery justified the war's terrible destruction.

As disorder and revolution spread across our world today, and the Obama administration rushes for the exits in Iraq and Afghanistan, the United States must decide whether it still believes in Mill's principle. War is either such an evil in itself that the United States should withdraw from its dominant world position or greater causes—such as advancing human freedom—can make war necessary.

Two books on justice in war implicitly probe this profound choice. David Scheffer's "All the Missing Souls" is a personal history of the author's service in the Clinton administration's State Department, where he advocated the creation of the International Criminal Court and United Nations war-crimes tribunals for the hotspots of the 1990s: Rwanda, Yugoslavia and Cambodia. In "Justice and the Enemy," British journalist William Shawcross asks whether diplomats and specialists in international affairs, among whose number Mr. Scheffer must be counted, have any realistic alternative to the Bush administration's strategy of using the military to detain, try or kill terrorists.

"The new century's challenge will not be restraining the United States from invading the next Afghanistan or Iraq but persuading it to stop genocide in the next Rwanda or ethnic cleansing in the next Kosovo."--John Yoo

Both authors struggle for solutions to a world racked by new forms of war. One of the remarkable developments of the post-World War II world is the decline of great-power conflict. Since 1945, deaths caused by interstate wars have dropped to their lowest ebb since the Peace of Westphalia in 1648, when the modern state system emerged. Whether because of nuclear weapons, or the balance between the superpowers, or the heavy cost of conquest, globe-spanning wars between competing alliances with huge industrial armies have almost vanished. "Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away," Abraham Lincoln declared in his second inaugural address. Nearly 150 years later, Lincoln's hopes and prayers may seem close to fruition.

But this horse of the apocalypse has not simply taken a breather. He has only ridden off to new fields. As interstate war has declined, death has come from unconventional conflicts: civil wars and asymmetric wars involving nonstate groups. Of the estimated 40 million people killed in conflicts since the end of World War II, roughly 80%, if not more, have lost their lives in internal wars. Powerful nations usually have little incentive to stop the killing. Deaths in faraway lands pose little threat to their security, and it is far easier to free-ride off the efforts of others. The new century's challenge will not be restraining the United States from invading the next Afghanistan or Iraq but persuading it to stop genocide in the next Rwanda or ethnic cleansing in the next Kosovo.

Messrs. Scheffer and Shawcross have very different ideas about how to meet this challenge. Mr. Scheffer believes that the answer lies in the International Criminal Court—that the promise of legal consequences will end a culture of "impunity" among the leaders of nations or groups that engage in "atrocity crimes." Most of "All the Missing Souls" is a retelling of the bureaucratic and diplomatic maneuvering to create first the specialized tribunals for war-torn nations and then the permanent ICC.

Mr. Scheffer, who was America's ambassador-at-large for war crimes, is not shy about his own contribution. Without him, it seems, America would not have led the effort to create the early tribunals, and it is only the machinations of higher-ups—ignorant Defense Department officials, balky Republican senators—that prevented the United States from joining the ICC. Alas, the bureaucratic minutiae of this story will be of interest only to those who cannot wait to read the minutes of the next inter-governmental working group.

Asking harder questions about the link between war-crimes tribunals and the crimes themselves would have made Mr. Scheffer's work more than a soporific memoir. He asserts that the threat of war-crimes prosecutions will prevent future atrocities. He even claims that, had the U.S. sent al Qaeda leaders to the ICC, the court could have been "useful" as "an adjudicator and deterrent of future terrorist attacks of great magnitude." Unfortunately, he can provide no evidence for this core article of faith. In fact, recent empirical study suggests that the threat of prosecution may exacerbate humanitarian atrocities by targeting leaders whose cooperation is critical to restoring peace and stability in a weak or failed state. Does anyone really think that the prospect of ICC prosecution discouraged Moammar Gadhafi from waging a brutal war against the Libyan people?

Nor does Mr. Scheffer understand a more important link between tribunals and the rate of war crimes—no doubt very much on the minds of U.S. officials today. The last, best hope of preventing mass atrocities must lie in the intervention of the great powers. Tribunals come into play too late—thousands will have already lost their lives. The more the ICC, independent of the control of the U.N. Security Council or any great power, seeks to enforce treaties drawn up by nations that carry little responsibility for the fighting, the more reluctant will the United States be to send its troops into dirty, messy civil wars that blur the lines between civilians and combatants. Without military intervention, ex post facto trials will do little to stop the killing.

One can only gape at Mr. Scheffer's account of his activities while anywhere from 500,000 to 900,000 Tutsis were slaughtered in Rwanda in 1994. Rather than press his colleagues at a National Security Council meeting for military intervention, or resign in protest, Mr. Scheffer says that he achieved a second-best result: American approval for a genocide investigation. "I wonder to this day," he says, "whether I could have accomplished more at that meeting."

Mr. Scheffer tries to spice up this combination of diplomatic detail and depressing passivity with a stray attack on the Bush administration's approach to world affairs after 9/11—the war on terror, as it was once known. With precious little analysis, he claims that the Bush administration destroyed America's leading human-rights position, though naturally he fails to mention the Obama administration's decision to continue, and even expand, many of the U.S. policies adopted in the wake of the attacks.

It is exactly at this point that Mr. Shawcross picks up the story. Mr. Shawcross has a special authority not as a former diplomat but as perhaps the most penetrating critic of America's destructive intervention in Cambodia during the Vietnam War. His father, Hartley Shawcross, served as the chief British prosecutor at the Nuremberg Trials after World War II. This family connection might have given the author a natural sympathy toward the ICC and the growth of international law generally.

But Mr. Shawcross is a skeptic. "Justice and the Enemy" rejects the grand schemes for global governance and instead mounts a full-throated defense of the Bush administration's counterterrorism policies. Where international critics decry the detention of suspected terrorists at Guantanamo Bay as a "legal black hole," Mr. Shawcross sees a nation at war exercising its right to capture and hold the enemy. Where human-rights advocates allege the systematic torture of hundreds of al Qaeda prisoners, Mr. Shawcross understands that tough interrogations were needed in the months after the 9/11 attacks to gain intelligence on an enemy that refuses to obey the basic rules of civilized warfare. Where lawyers for 9/11 planners like Khalid Sheikh Mohammed portray military commissions as "kangaroo courts," Mr. Shawcross describes military trials that will give terrorists a fairer process than victorious nations have ever given an enemy. "Any German in the dock at Nuremberg would be astonished to learn of his rights, privileges, and entitlements, if he were suddenly transferred by time machine to the court in Guantanamo," he rightly observes.

If the United States remains on firm historical and legal footing in its treatment of terrorists, why then the overwhelming criticism from academic, legal and journalistic quarters, not to mention foreign governments? In a conclusion sure to spark left-wing outrage, Mr. Shawcross suggests that the answer lies in the mutation of human-rights groups—from proud custodians of efforts to place civilized limits on warfare to powerful, ideological organizations beset by anti-Americanism.

Mr. Shawcross describes how left-wing groups, with the cooperation of gullible journalists, spread outright lies about conditions at Guantanamo Bay, about American detention and interrogation policy, and about the trials of terrorist leaders. He writes of Amnesty International: "Like Human Rights Watch and other human rights organizations, it still did important work, but it seemed to many to have become tragically partisan, consumed above all by disdain for the United States and Israel."

Mr. Shawcross vividly surveys the score of issues arising from the war on terror, and his judgments are sound, because they look to history and practice, not ideology. But he too could have benefited from forging deeper into the connection between the world's harms and the measures available to cure them.

America's response to 9/11 caused outrage among intellectuals precisely because it proved so successful: preventing further attacks on the United States, eliminating Osama bin Laden and the al Qaeda leadership, and beginning the overthrow of vicious authoritarian regimes in the Middle East. The Bush administration rejected the ineffectual international network of activists, rights groups and courts in favor of a robust unilateral response that drew upon the traditional sources of state power, including diplomacy, economic sanctions and military force.

America's response was so effective, and so hated, because it relied on national sources of power spurred on by a great people's belief its own exceptional place in history. Taking advantage of its superior economy and military, the United States mounted a world-wide campaign to protect its own security and bring democracy and capitalism to lands that barely knew them. Were it not for America's use of military power in the last century, nations in places ranging from Europe to East Asia would not know freedom today. Mr. Shawcross expresses a version of this idea when he observes that "the U.S. military was [in World War II], and has remained, the greatest defender of human rights that the world has ever seen."

National sovereignty, however, presents a great threat to the network of activists, human-rights groups and governments behind the International Criminal Court. They hope to build a better world by submerging national interests and differences in dreams of world courts and global governance. But their agenda contains the seeds of greater folly.

If national sovereignty declines, the United States will be less able to maintain a minimum of international peace and security. We will be less willing to risk our lives, fortunes and sacred honor to spread political and economic freedom, as we have—haltingly but steadily—for a century. The many people in the world oppressed by authoritarian dictatorships, or threatened by ethnic and religious civil wars, will find little succor in the arms of an international bureaucracy. They will find it instead—if we choose our path to the future wisely—in the strength of the United States and the will of its people.

John Yoo is a visiting scholar at AEI

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