The question of how to hold government agents legally accountable for war crimes and crimes against humanity is among the most important, and toughest, we face. Charli Carpenter provides valuable guidance on the prospects for achieving such accountability, though how to get there practically is a much more difficult issue.
The problem is one of enforcement. And as Carpenter explains, “the key question is political power.” Although today’s international system features supranational institutions and intricate legal covenants and enforcement mechanisms, its most overriding property is anarchy. There is no world government, no sovereign body above states with the authority or power to impartially impose justice on state actors.
In the view of many international relations scholars, this anarchic structure explains much about the way states behave. Anarchy imposes incentives and constraints on states. It is a self-help system, where each sovereign unit is responsible for its own security within a competitive, often ruthless, Hobbesian domain. Arguably, war itself is a function of the anarchic structure of the international system—that is, war occurs because there is nobody to stop it—and unless and until some kind of global Leviathan arises, it will persist (though that impractical alternative implies its own set of horrors).
State sovereignty within a structure of anarchy means international courts lack universal jurisdiction. States must therefore voluntarily submit their own national leaders to criminal liability in the enforcement of justice for international crimes. Understandably, states are not inclined to do this. And even when they do formally submit, there is no coercive body above states that can force observance of international rulings.
In 1933, for example, the League of Nations condemned Japan’s military occupation of Manchuria as a violation of international law. Japan responded by simply leaving the League of Nations. This continues, routinely, to the present day. In 2013, the Philippines brought a case to an international tribunal against China’s expansive maritime and territorial claims in the South China Sea. From the outset, Beijing declared it would not participate in the arbitration and would go on to dismiss the findings of the court when it ruled in favor of Manila.
Big, powerful countries tend to abide by international law when it suits them and ignore it when it doesn’t. Thanks to its unique power position atop the international hierarchy, this is especially true of the United States. In 1986, the International Court of Justice, the UN’s highest judicial body, condemned the United States for the crime of aggression against Nicaragua. The Reagan administration had fueled the murderous Contra rebels and secretly mined Nicaraguan harbors in an attempt to undermine the Sandinista government. The White House ignored the court’s findings, dismissed its legitimacy, and refused to hold official perpetrators accountable.
Washington’s antipathy to international courts is illustrated with stunning clarity by a law Congress passed in 2002 authorizing the president to use “all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.” In other words, the United States does not even recognize the legitimacy of the court.
Thus, a major flaw in today’s international legal system is that justice is influenced, and often even determined by, power asymmetries. It’s difficult to know how to get around this. The very foundations of the post-WWII international order were only possible because the great powers of the time granted themselves special privileges. Permanent seats on the United Nations Security Council, and veto power to boot, helped ensure the buy-in of the world’s most powerful states.
As a practical matter, the problem of enforcement means that international courts will tend to prosecute crimes selectively, which will generally mean small, weak states are subject to the law, while powerful states can escape accountability. The International Criminal Court’s disproportionate focus on prosecuting African leaders, for example, has garnered widespread criticism. But this double standard merely reflects the difficulty of applying the law equally in an anarchic system.
This doesn’t mean international law is a wholly futile enterprise. International legal standards establishing rules of the road and criminalizing certain conduct in war can reflect existing norms while codifying them to garner greater adherence among states. International law can also establish new norms. This process is not without its achievements.
One obvious solution to the problem of enforcement of international crimes is to turn to domestic mechanisms of accountability. Some countries have just recently demonstrated the power of the rule of law to hold accountable even those in positions of political power. South Korea impeached its president on corruption charges and last year sentenced her to 25 years in prison. In 2013, after a lengthy trial, former Guatemalan dictator Efraín Ríos Montt was found guilty of genocide and crimes against humanity and was sentenced to 80 years in prison. It was the first time a former head of state had been found guilty of such crimes by the domestic authorities in his or her own country.
Incidentally, the United States trained Ríos Montt in the School of the Americas and then the Reagan administration actively supported his regime as it massacred Guatemalans by the thousands. Although it took decades, Guatemala managed to hold its own former leader accountable for atrocities. But there has never even been a serious effort to prosecute those Reagan era officials who were complicit in these same crimes. In fact, Elliott Abrams, one of the officials most closely involved, has returned to government service in a prestigious post at Trump’s State Department.
Although the United States was founded on the rule of law, it is hardly living up to that standard. Back in June, an independent government agency called on President Trump to fire his White House counselor, Kellyanne Conway, for being a “repeat offender” of the Hatch Act, an ethics law prohibiting some executive branch employees from engaging in certain political activity. The president ignored the recommendation. Behind closed doors, according to a Washington Post report last month, Trump promised to pardon any officials working on the border fence if his orders force them to violate federal statutes.
It seems America has its own domestic enforcement problem. The nation’s highest officials have long enjoyed a kind of immunity for criminal acts (though ordinary citizens are denied this perk).
In explaining his decision to pardon former President Richard Nixon after the Watergate scandal, President Gerald Ford said it would be unfair to prosecute a former president. “[P]ublic policy,” he wrote in his memoir, “took precedence over a rule of law.” Likewise, Reagan administration officials involved in the Iran-Contra scandal—the covert program to illegally sell arms to Iran and direct the proceeds to the Contra rebels, in direct violation of an act of Congress prohibiting such aid—got off scot-free. Although an independent prosecutor indicted numerous officials, none of them spent a single day in jail. Those still under threat of prosecution after Reagan left office were pardoned by President George H. W. Bush, who was, as Reagan’s CIA director, himself a party to the crimes.
More recently, President Obama declined to prosecute officials from the George W. Bush administration for their illicit detention and torture program, which violated both U.S. and international law, on the grounds that it was not time for “retribution.” After a UN special rapporteur suggested in 2013 that the Obama administration’s drone bombings may violate international law, the White House boycotted inquiries from the UN Human Rights Council. And when Trump bombed Syrian regime assets in 2017 and again a year later, he did so without authorization from Congress and in violation of Article 2(4) of the United Nations Charter. Hardly anyone suggested he or his administration should face sanction. The Justice Department’s internal policy against indicting a sitting president has become a matter of national debate in the Trump era, raising fundamental questions about the rule of law.
This is not as the Founders intended. As James Madison wrote in Federalist 57, Congress “can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society.” Without equality before the law, he wrote, “every government degenerates into tyranny.”
The prospects for holding U.S. officials accountable for war crimes and crimes against humanity are, sadly, pretty bleak. With its invasion of Iraq, the Bush administration committed one of the most egregious war crimes of the twenty-first century. The damages run into the trillions of dollars and hundreds of thousands of lives. No effort is afoot to bring Bush and his subordinates up on charges.
This suggests imposing the rule of law on government officials who commit grave crimes may require a political and cultural change that Americans hardly seem ready for. Nationalism and partisanship are powerful psychological forces that tend to make citizens not just lenient toward their political leaders, but credulous of their benign intentions. As George Orwell put it in his Notes on Nationalism, “Actions are held to be good or bad, not on their own merits, but according to who does them, and there is almost no kind of outrage—torture, the use of hostages, forced labour, mass deportations, imprisonment without trial, forgery, assassination, the bombing of civilians—which does not change its moral colour when it is committed by ‘our’ side.”
What should happen to U.S. officials who commit, or are complicit in, war crimes and crimes against humanity? Ideally, the American system of justice should hold them accountable to the fullest extent of the law. But agents of the U.S. government are unlikely to embrace the rule of law on their own. They will have to be pressured. Unfortunately, generating enough public support for strict adherence to the rule of law requires people to suppress their nationalistic sentiments and partisan loyalties. It also requires extraordinary integrity on the part of elected officials and civil servants. America in 2019 seems nowhere close to that ideal.