Speaking Hypothetically, Mr. President-Elect…

Geoffrey Robertson, QC, is acknowledged as a leading authority on International Law and Human Rights. I loved his rollicking “Hypotheticals” on ABC TV and was very impressed by his book “Crimes Against Humanity”, in which he traces the evolution of human rights law. The following is an excerpt of a speech he gave recently in Cleveland, Ohio (as published in the Sydney Morning Herald today) and offers some practical suggestions to the new President-Elect on questions of global justice…

He’s got the whole world in his hands, but can Obama do it justice?

Geoffrey Robertson

Sydney Morning Herald, November 13, 2008

 

President-elect Barack Obama is an embodiment of what human rights can do; a product of the landmark Supreme Court decision on racial segregation, Brown v Board of Education, and the achievements of the civil rights movement in the ’60s.

Suddenly the American flag is waving not burning, the world expects he will somehow right the wrongs of Guantanamo and Abu Ghraib, of Bush Administration defiance of the United Nations and the Geneva Conventions. There is no doubt Team Obama is committed to global justice. But how can they re-engage with the struggle to achieve it?

First, by supporting the International Criminal Court. The treaty establishing it was signed by President Bill Clinton; George Bush “unsigned” it, then approved the American Serviceman Protection Act (Jesse Helms’s “bomb The Hague” bill) empowering him to use force to free any American charged with war crimes. The US threatened to withdraw aid and military support from any country that joined the court. Despite this bullying, 108 states have ratified the court’s statute, and the US will have an opportunity to negotiate its own membership in 2010.

The Obama administration will have no difficulty closing Guantanamo. There are only 255 prisoners left and those against whom there is any admissible evidence can be tried by jury in federal courts or by court martial. The others can be sent back to their country of nationality, or else released under surveillance.

How can the US atone for using torture on Donald Rumsfeld’s watch? By ratifying the Torture Convention, for a start. Then by providing a meaningful safeguard for its prisoners of war, namely by waiving its right to confidentiality in Red Cross prison visitation reports.

Whenever Rumsfeld was asked about treatment of prisoners, he would claim they could not have been tortured because they were regularly visited by the Red Cross. Of course, they were treated inhumanely, as the Red Cross reported. But its insistence on confidentiality meant its reports were sent in secrecy to commanding officers, who, in the case of Abu Ghraib, chose to ignore them – until one leaked to The Wall Street Journal.

Then there is the death penalty. The US – in the engaging company of Iran, China, Saudi Arabia and Pakistan – is one of the big five executioners. Obama cannot change his countrymen’s attachment to capital punishment: Clinton had to sign the death warrant for an insane man, Ricky Ray Rector, to clear his path to the White House, and during this campaign Obama was forced to promise he would not interfere with some states’ plans to execute child rapists.

He can, however, use federal powers to stop the execution of foreign nationals convicted in breach of international law, usually by denying them consular access when arrested. A number of such executions were condemned by the International Court of Justice and “regretted” by a Bush Administration which did not lift a constitutional finger against them.

There are more in the death row pipeline, and Obama – for many years voted the best constitutional law lecturer at the University of Chicago – might find a way to stop states such as Texas putting his country in breach of the law of nations.

Commander-in-Chief Obama will probably alter his predecessor’s edicts, to ensure fairer trials for terrorist suspects, although his oratorical powers may not be sufficient (and may not even be exercised) to persuade his people of the futility of making martyrs of any convicted of complicity in September 11, 2001.

There is the prospect of the execution of a few Guantanamo inmates – Khalid Sheik Mohammed in particular, if his post-water board confessions to masterminding September 11 are used against him. It would be absurd to give such people what they want and pray for – a fast track to paradise and a martyr’s following.

The Bush Administration regarded international law as a set of rules that applied to other countries. Team Obama will want to engage with it: Harold Koh, former assistant secretary for democracy and human rights, is predicted to be its first Supreme Court appointment; David Sheffer, Clinton’s war crimes ambassador, is tipped to be Obama’s UN ambassador. Susan Rice and Samantha Power, who will both be important players, have in the past urged US action to stop genocide. They are unlikely to leave this task to ragtag UN peacekeepers from poor countries, who go nervously and without proper equipment to such places as Darfur and the Congo where there is no peace to keep.

The world has such great expectations of Barack Obama that he may well disappoint: some problems, especially in Africa, are intractable and he has a recession topping his agenda. But it is unlikely that this heir of Franklin “Four Freedoms” Roosevelt and of John “Ich bin ein Berliner” Kennedy will abandon the dream of an international community based on the rule of law. It will be his contribution to the global struggle for justice that will decide whether his election goes down not only in American history, but in the history of the world.

Geoffrey Robertson, QC, is a member of the UN’s Internal Justice Council and author of Crimes Against Humanity. This is an edited extract from his Klatsky Lecture delivered last week in Cleveland.

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~ by Garry on November 13, 2008.

2 Responses to “Speaking Hypothetically, Mr. President-Elect…”

  1. Do you think Barack has Geoff in his advisory team? 😉

  2. wouldn’t that be something!
    It’ll be interesting to see who he comes up with. Of all national leaders, the leaders of the US of A need to be able to hear at least some credible non-US voices. One cannot be a good ‘global citizen’ without at least hearing something of the other citizens’ perspective, especially when those big carrier battle groups are chugging around in so many other people’s ponds.

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