The United States vs. the Empire of Law
Carlos Fuentes, the Mexican novelist and diplomat
whose books include the seminal The Death of Artemio Cruz, serves on the
editorial advisory board of New Perspectives Quarterly.
Mexico City - My first diplomatic experience occurred
in a now very distant 1950 when I served in Geneva as secretary to the
Mexican member of the Commission on International Law of the United Nations,
Ambassador Roberto Cordova, a stellar career diplomat in a Mexican foreign
service corps which at that time had, like MGM, "more stars than
JUDGMENT AT NUREMBERG | Those events echo today in my memory because
the principal theme that occupied Cordova and the Commission on International
Law in 1950 had to do with the legitimacy of the processes initiated by
the victorious powers of World War II against conquered Nazi Germany.
The dispute was clear. Did an ex-post-facto tribunal-that is, a tribunal
created after the crimes themselves-have the right to judge the deeds
of the past? Didn't Nuremberg violate the cardinal principle of criminal
law established since the Romans, nullum crimen nulla poena sinae previa
lege penale-that is, no crime and no punishment without a law that precedes
it? Or, on the contrary, didn't the fact that the crimes being judged-atrocities,
massacres and executions without due process-were already crimes before
World War II give full legitimacy to the Nuremberg Tribunal? And in any
case, weren't the crimes of the Nazi regime so repugnant as to justify
an ad hoc tribunal to judge the Hitler regime as well as the individuals
who committed these crimes in its name?
The principal promoter of Nuremberg and of the legislation of war crimes
in 1945 was the United States of America. Soviet reticence was understandable,
and its categorical demand to cut off the heads of the leaders of the
Nazi regime, including those who had escaped the hanging noose, was a
cover up of Stalinist crimes. Meanwhile, England, with absolute phlegm,
didn't allow the deeds of "Bomber" Harris, the destroyer of
Dresden and the promoter of the allied air victory with losses that were
greater for Britain than for Germany, to prick its conscience in the least.
The US, on the contrary, arrived at Nuremberg and later to the Commission
on International Law as the flag bearer of international criminal jurisdiction,
an integral part of a global order founded in and on the law. Undimmed
by Hiroshima, the US emerged from World War II as the luminous conscience
of the "good war," the moral war, won thanks to its resolute
participation against the Axis-this, of course, of Evil-Rome-Berlin-Tokyo.
In victory, the US became the principal promoter of international organizations
as an indispensable ballast against the repetition of the atrocious events
of 1939 to 1945.
THE MOST DANGEROUS DISPUTE | The Cold War warmed this American
internationalist enthusiasm, giving it a defensive turn. In the deaf combat
against communism and its citadel, the Kremlin, Washington needed allies:
allies willing (Western Europe, situated on the borders of Soviet power)
or allies by force (Latin America aligned for better or for worse with
the anti-Soviet politics of Washington).
President Ronald Reagan called the USSR "The Empire of Evil."
Good or evil, it was an empire with feet of clay that shattered noisily
with the Berlin Wall in 1989. President George Bush the elder declared
at that time that an era of "a new international order" was
beginning, that is, a multilateral order with various centers of power
(above all, the US, Europe and Japan, the economic locomotives of the
new order) and the supremacy of international law.
It has not been so. The disappearance of a comparable adversary, the USSR,
has left the US as the only superpower.
A clear consciousness of the limits of imperial power, legal barriers
and treatment of allies with trust and respect distinguished the presidency
of a true statesman, President Bill Clinton. Today, any notion of limits
to the unilateral will of the White House has disappeared. And nothing
demonstrates that better than the frontal attack of the American government
against the International Criminal Court which has just been established
by the immense majority of the global community, opening up, as Quentin
Peel wrote in London Financial Times, "the most dangerous and divisive
dispute between Europe and the US, after Sept. 11."
THE BEGINNINGS OF THE COURT | The ICC is the result of the terrible
experiences of the 20th century: massive violations of human rights; the
Nazi Holocaust; the Stalinist gulag; the savage dictatorships of Latin
America, Africa and Asia; apartheid in South Africa; My Lai and the American
atrocities in Vietnam; more recently, the crimes against humanity in Rwanda
and the former Yugoslavia (not to mention Chechnya).
The community of nations has been responding to these crimes since the
judgments at Nuremberg, but always departing from this principle: Criminal
trials are always in the first instance exclusive to the internal laws
of each nation. Only when these crimes affect citizens of a third country
(the assassination of a Spaniard by the Pinochet dictatorship in Chile)
or if they are committed outside the territory of the crime's author (the
assassination of the Chilean Socialist Orlando Letelier in the streets
of Washington by agents of Pinochet) does the action proceed from an external
jurisdiction against an external accused as the Spanish judge Baltasar
Garzon has been doing.
The ICC adheres entirely to these principles; even in instances specific
to the US, its statute clearly states that neither internal American jurisdiction
nor the safeguards of American military personnel are affected.
I will try to summarize the principles that govern the court:
-- The ICC will only hear "widely spread and systematic atrocities."
-- In the first instance, these crimes will be investigated and judged
by national authorities.
-- The ICC will act only if the national courts cannot or will not.
-- The judges and lawyers of the ICC will be selected on the basis of
competency and impartiality. Given that any political trial can hide vendettas
or be a cover up for the internal incompetence of a given nation, the
signatory countries have the right to remove any partial judges or prosecutors.
THE USA AGAINST THE WORLD | In this way, the court offers the maximum
guarantees within a framework of laws to the United States of America,
the only superpower in a world that differs so greatly from that imagined
by the elder Bush at the end of the Cold War. The trauma of Sept. 11 has
given international relations a new turn. Profoundly wounded, the US demands
and receives international support in its battle against terrorism. Europe
responds by aiding the US in Afghanistan. But when Europe asks the US
to support a worldwide legal body that can be an effective weapon against
terrorism, the US refuses to participate.
This is the danger, this is the anguish, this is what astounds. Despite
all the aforementioned safeguards, President George W. Bush's government
says no. And it says no in order to affirm that the US not be subject
to a law or jurisdiction above or beyond those of the US itself. Paradox
of paradoxes: in an era of globalization, when the death of national sovereignty
is celebrated or lamented, whatever be the case, the maximum world power
affirms its own sovereignty to a degree without precedence, at least since
the era of the Roman Empire.
Without limiting powers or potential balance, the US tells the world:
My sovereignty is inviolable. Yours isn't. Or, there is one rule for the
USA and another for the rest.
US Secretary of Defense Donald Rumsfeld has spelled it out. It is a question
of "defending our people, defending our interests, defending our
way of life." Against Al Qaeda? Against terrorism? Against crime,
subversion, Martian invaders, mutants planted like cabbage heads in the
American suburbs, even against local terrorists like Timothy McVeigh?
No. Where Rumsfeld sees the greatest danger for the American people is
in the ICC. Are the enemies of the US the 74 states that have signed their
commitment to the court? Is the entire world the enemy of the US? Obviously
it is, for the right wing of the government in Washington. The battle
against the court has little to do with its merits (abundant) or its dangers
(nonexistent). It has to do with the internal struggle for power within
the Bush administration and signifies the triumph of the most reactionary
faction of the administration (that of Vice President Richard Cheney,
Secretary Rumsfeld, and Attorney General John Ashcroft) against the isle
of internationalist reason represented today by Secretary of State Colin
Powell. Read the virulent rightist rejection of the court as a rejection
as well of Powell, whose days, according to the general opinion of European
diplomacy, are numbered.
The Americans can leave the court, but we cannot. The decisive words of
Javier Solana, charged with the security and foreign affairs of the European
Union, should be the guide not only for the Europeans but for all of us.
For our own benefit and for that of the US, he says, it behooves us to
remind Washington that the more imperial its politics, the more vulnerable
it will be. That if it can't rely on the international community beginning
with its own allies, the US will build its power on air. That nothing
is better for the US after Sept. 11 than to strengthen the empire of law.
BUSH THE TREATY ASSASSIN | But you can't bank on that. The ICC is
only the last in a long series of irresponsible decisions against the
elder Bush's "new international order" that the younger Bush
has ordered decapitated. Everyone is familiar with the list: against the
Kyoto Protocol and in favor of the noxious emission of gases; against
the acts on biological arms; against the prohibition of nuclear experiments;
against the Treaty on Landmines; in favor of oil exploration in the Alaskan
ecological zones; in favor of protectionism for steel and gigantic subsidies
We Latin Americans complain about the scant attention paid to our countries
by the Bush administration. On the contrary, we should congratulate ourselves.
At this moment, to be out of Washington's radar range is almost a health
But my memory returns to Geneva, to the Commission on International Law,
to the immediate post-war period and the image of the US as an active
promoter of international law and organization, including penal law. The
atrocious crimes of Sept. 11 have more victims than those innocents assassinated
by a blind and destructive intolerance. The US has victimized itself by
turning its back on the best defense against terror, which is the law.
And Al Qaeda has victimized us all, in crushing the construction of a
global legal order, the only avenue against terror, but also against the
explosive seeds of terror itself: ignorance, hunger, disease and the poverty
of 2 billion human beings on the planet.
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