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Oct 2001 • Vol 1, No. 5 •

The United States
“Universal Jurisdiction”

By Rod Holt

“In less than a decade, an unprecedented movement has emerged to submit international politics to judicial procedures.” With this sentence Henry Kissinger starts his essay, “The Pitfalls of Universal Jurisdiction,” published in the journal Foreign Affairs for the July-August, 2001 issue.

Mr. Kissinger wrings his hands in despair. The younger generation has not learned yet that, “The role of the statesman is to choose the best option when seeking to advance peace and justice, realizing that there is frequently a tension between the two and that any reconciliation is likely to be partial.” One wonders how many readers of this journal think Kissinger believes any of that.

The idea of universal jurisdiction takes shape

Mr. Kissinger has watched the vague notion of universal jurisdiction taking on a concrete shape and he is quite upset. Representatives from 160 countries agreed on a document (the Rome Statute) which lays down the rules and conditions for creating an International Criminal Court (ICC). The Statute further empowers the ICC to apprehend and punish individuals who have committed war crimes, genocide, or crimes against humanity no matter what their rank or title, no matter where they hide and without regard to national borders or citizenship. It has been signed by 137 countries and 37 of those have ratified it.

The notion that a supra-national body such as the ICC could ignore U.S. sovereignty is just incredible for Kissinger. “Most Americans would be amazed to learn that the ICTY [the International Criminal Tribunal for the former Yugoslavia], created at U.S. behest in 1993 to deal with Balkan war criminals, had asserted a right to investigate U.S. political and military leaders for allegedly criminal conduct….” Kissinger can be concerned only if the “allegedly criminal conduct” is within the ICC’s purview which could be true only if the crime is on the level of genocide or the wanton slaughter of civilians, torture, enslavement, or things of that sort.

Law will replace war?

Belittling those who disagree with his assumption that politics and warfare are the same, he continues, “The advocates of universal jurisdiction argue that the state is the basic cause of war and cannot be trusted to deliver justice. If law replaced politics, peace and justice would prevail. But even a cursory examination of history shows that there is no evidence to support such a theory.” Here Kissinger’s position is reduced to saying bombs and bullets do work and the courts have not worked.

Henry Kissinger is not some remote academic. He is by far the most experienced agent of western imperialism alive and the most proven negotiator when he has B-52’s and napalm at his disposal. He has a long history of involvement with the dirty side of American imperialism.

He started in 1943 as a military intelligence officer, went to Harvard after WWII where he rose to the rank of professor. In the 1950s and 1960s he did special projects for Presidents Eisenhower and Kennedy. Coincidentally, he held quite important positions with the Center for International Affairs, the Council for Foreign Relations, the Harvard Defense Studies Program, the State Department, the U.S. Arms Control and Disarmament Agency (1961-1968), and with the Rand Corporation (1961-1968). Through the Nixon and Ford administrations (1969 to 1977) Kissinger became the power behind the throne. He was personally entrusted with secret missions to Moscow, Beijing and Hanoi. He was the Secretary of State and National Security Advisor. He received a Nobel Peace Prize in 1973 to the amazement of the country. With the arrival of Jimmy Carter, he took lower profile advisory positions while remaining a faculty member of Harvard University, his influence in government already a legend.

The conservatives in Congress act

Agreeing with Kissinger’s general line, the United States has objected to the Statute for some years. The State Department has avoided outright rejection of the Statute preferring to submit amendments and wording changes that no one else can accept.

It seems unlikely that the U.S. Senate will approve the Statute since Jessie Helms is dead against it and has rallied most of the Senate conservatives to his side.

In the House of Representatives, Tom DeLay, the majority whip and Texas Democrat, attached and pushed through an amendment to the spending bill paying the back dues the U.S. owes to the UN. In the words of the New York Times, “Mr. DeLay’s provision would cut off military aid to any non-NATO countries that ratify the International Criminal Court treaty. In addition, it would bar American soldiers from participating in United Nations peacekeeping efforts unless the soldiers first received immunity from the court’s jurisdiction.”

Kissinger no longer has both the first and last word on foreign policy but, although 78 years old, he is not dead and his judgments carry a lot of weight in the State Department.

Campaigning for the ICC

There is an intense campaign to get 60 states to ratify the Statute (the minimum number needed to empower the Court). A single-issue coalition, the Coalition for an Independent Criminal Court (CICC), has been organized to lobby for the Statute in every corner of the world.

Behind the CICC is an amazing array of forces. Gathered together are 800 non-governmental organizations (NGOs), the Ford Foundation among others of its kind, plus twelve governments including Canada, Germany, the United Kingdom, and the European Union. These governments and NGOs finance and staff the CICC. It is a formidable lobby indeed.

If the support for the Coalition is so widespread among the major capitalist countries (except the U.S.) there must be some reason beyond a warming altruism. Consider the undisputed fact that the United States’ domination of the world economy still rests upon the military strength it uses to buy or bully any nation it wants. The competing imperialists, possessing a lesser arsenal, are always looking for a smokescreen which might prevent covert or overt intervention by the U.S. while they extend their own economic power. They hope that a judicial body with the power and prestige some expect from the ICC would restrain the U.S. and its agents by threatening them with exposure and embarrassment.

Do not think for a second that the competing imperialist powers are nice guys just because they are competing with the U.S. Look at the record of France in Southeast Asia and Algeria where the French Foreign Legion set an example of torture and murder for the Green Berets. Review the acts of British imperialism in India, China, the Near East, and their colonies in southern Africa if you have any illusions about these bearers of “the white man’s burden.” Finally, add to their history the two inter-imperialist world wars and ask what good we can expect to come from this latest round of maneuvers.

All the world is not yet safe for business

A large part of the world lies on the fringe of the global capitalist system. Since the 1950s the only successful method for extracting super-profits from the less developed countries is to have local collaborating regimes ruling the populace and controlling the territory. (Direct rule by an imperialist power, as was the case with the United States in the Philippines or the British in India is no longer feasible.) But in many cases, the existing regimes are hostile to imperialist intrusion for their own reasons.

In some cases the rulers can stay in power only through social and cultural tradition kept alive by enforced ignorance. Iran under its clerics is an example. In other cases there is a well established ruling class engaged in its own super-exploitation by semi-feudal means. The rulers of southern U.S. before the civil war were based on the plantation system with slave labor. They are one example, and the extremely wealthy elite of Argentina who based themselves on enormous cattle ranches in the 19th century is another. The regimes in both of these cases were guilty of acts barbaric and inhumane.

The result in all of these cases is the same: a terribly inadequate infrastructure, an untrained, and ill-disciplined work force, and often a simmering civil war waged by a desperate proletariat against a repressive and expensive army. Efficient manufacturing is impossible in this environment, although inefficient manufacturing may still be very profitable. Experience has shown that imperialism has been successful in these countries only in extracting raw materials such as oil and timber.

The export of capital, one of the major activities of imperialism, is usually unprofitable where the social relations of production remain semi-feudal. The existing agricultural system along the west coast countries of South America provide examples. There agricultural workers live at the land owner’s sufferance at subsistence levels. The portion of the agricultural product going to the owner is so high that his profits do not increase with marginal increases in investment. The absence of investment in the agricultural sector ripples throughout the country’s economy since the big land owners are the political elite.

Stamping out feudalism

How can global capital open up these exceptional, semi-feudal states? This question is raised and discussed in an article “Are Human Rights Universal?” by Thomas M. Frank. Mr. Frank is Director of the Center for International Studies at NYU, and his article appeared in Foreign Affairs, eight months before Kissinger’s article.

Frank writes in fierce opposition to “cultural extremists” and “cultural exceptionalism”—to use his terms. He uses the Taliban in Afghanistan as his principle source of horror stories and medievalisms. Repeatedly he blames “Islamic fundamentalists” in Afghanistan, Pakistan, Sudan, Nigeria and Iran for violations of human rights in general and women’s rights in particular. The first sentence of his essay reads:

“In May 2000, the Taliban, who rule most of Afghanistan, ordered a mother of seven to be stoned to death for adultery in front of an ecstatic stadium of men and children.”

And this was published nine months before the terrorist’s attacks on the World Trade Center and the Pentagon! Is there prophesy here?

Although Frank writes using academic terms, the central thought is this: global capitalism needs global “democracy” and global cultural norms and to this end, feudal elements which are in the way must be eliminated.

This observation that feudalism must give way before capitalism is not recent. In Socialism Utopian and Scientific, in the English edition of 1892, Frederick Engels wrote:

“The bourgeoisie broke up the feudal system and built upon its ruins the capitalist order of society, the kingdom of free competition, of personal liberty, of the equality, before the law, of all commodity owners, of all the rest of the capitalist blessings.”

Frank, however is not making a historical statement; he is an advocate for “elimination.”

The barbaric side of Feudalism

Frank argues that cultural extremism is just an excuse used by the old, decrepit rulers to maintain a grip on their semi-feudal societies. That is the cause, he thinks, of the deplorable conditions the capitalists are faced with. That the populace also face the same deplorable conditions is secondary for Frank

According to him, the customs found in the countries dominated by the feudal cultural extremists are inhumane. Thieves have their hands cut off. Women are mutilated and subjugated to the level of slaves. It follows that doing away with barbaric customs will also do away with the feudal remnants of society (and its rulers), and henceforth capitalism will bloom.

Although we are mocking Mr. Frank a bit, nevertheless it is not an accident that all these acts are heinous crimes, crimes that will fall under the jurisdiction of the ICC. In agreement with the writers of the Statute of the ICC, he insists that there are fundamental human rights which must not be violated.

With a little help from their friends

Frank then argues that people who have been subject to cultural extremism need help to acclimatize to imperialism. “[T]raditional communities are no longer able, alone, to resolve some of the most difficult global problems facing humanity: epidemics, trade flows, environmental degradation or global warming,” says Frank. By “traditional communities” he means those which deny the universal values of global capital (exceptionalism). By “trade flows” he means international trade flows—in dollars.

He advocates serious effort to stamp out cultural extremists: “…the international community has many sanctions … They should be used.” And again: “If the fight against cultural exceptionalism is to be made effective, it needs military and fiscal resources. It needs a common strategy involving governments, intergovernmental organizations, NGOs, business, and labor.” [!]

Two distinct Foreign Policies

It is apparent that Frank’s outlook implies a different foreign policy than Kissinger’s. Kissinger favors protecting the national sovereignty and cherished values by any means necessary: with clandestine operations, collaboration with tyrants, and sometimes outright assault on the countries giving U.S. imperialism trouble. The U.S. needs no help from an ICC or anything of the sort.

This mentality is exemplified by the refusal by the U.S. to even review its death penalty despite the fact that Europe considers it barbaric. For Kissinger, outside opinion is of no concern; the death penalty is part of the American way.

Frank’s foreign policy will advance imperialism’s more general interests. His view avoids state-to-state disputes and instead goes after cultural extremists as criminals under international law; that is, as individuals (perhaps heads of state) who are committing crimes against humanity. His policy will open the remaining dusty corners of the world to global capitalism by promoting “progressive” local regimes.

What this means for the working class

What does all this mean to the world working class and its partisans? Is the International Criminal Court something we should fight for or not? Amnesty International and all its allies say in chorus we should. We are against war crimes, genocide and the like. But it is not automatic that the civil libertarians are on our side in every case. We must think for ourselves.

The role played by the United Nations

The establishment of the United Nations toward the end of WWII was obviously the handiwork of western imperialism. The U.S., the UK, France, and a docile, pre-revolutionary Republic of China (Taiwan) were four out of the five permanent Security Council members, the fifth being the USSR. According to the UN Charter, this group was charged with ensuring world peace and security! The world’s proletariat could hardly relax with a gang like that in charge.

Liberals, Stalinists and democrats the world around (particularly the academic and legalist sort) expressed unbounded optimism in an international body which had police powers. But no sooner was this said than these police powers were used as a cover for the Korean war instigated by the U.S. and South Korea. For almost sixty years the UN has supplied “humanitarian” cover for international imperialism with Yugoslavia a recent example.

The police for the ICC

The ICC will be allowed to use the UN’s police power when necessary to apprehend those suspected of crimes against humanity. This is not different in principle from the western Allies jailing and trying some Germans at Nuremburg in 1946. At that time the victors needed some scapegoats to parade before the exhausted and suffering proletariat. “We had to stop these monstrous people, you see,” said the military tribunal. We were to forget the unleashing of the atomic bomb on real, living civilians and the destruction of Dresden and its inhabitants. We were to believe that evil people like Krupp—not the world-wide crisis of imperialism—caused the war.

What’s new with the ICC

Suppose a government (like the U.S.) were winking at its agents (like the CIA) committing crimes against humanity. What would stop a preponderant section of capitalist states (i.e., the UN Security Council), from identifying guilty individuals, seizing them and subjecting them to trial and punishment? Not much, unless the government sanctioning the crimes was powerful or was important for the capitalists’ profits. Unfortunately, almost every government is either too powerful or too profitable.

It is certain that the U.S. and the European Union both know who in Turkey and who in Iraq are brutally suppressing the Kurds. This has been going on for generations yet neither the U.S. nor any of her allies have been willing to jeopardize their trade profits just to end rape, torture and murder.

The cases of Pinochet and Milosevic

Is General Augusto Pinochet an example of the capitalist class punishing one of its own because of his unspeakably repressive regime? Pinochet came to power in 1973 sanctioned by the U.S. and aided by the CIA. The popularly elected Salvador Allende, a self-proclaimed socialist, was murdered. A military dictatorship established under Pinochet’s command wielded a terror so fierce and arbitrary that the American government was repeatedly embarrassed by world opinion, but to little avail. In 1998 he was forced out to avoid a popular rebellion, and fled to avoid retribution, not to escape prosecution for criminal acts.

Today he is free in Chile—not punished. A panel of judges ruled that he was not mentally competent to stand trial. This ending cannot be a victory for international law. For 25 years he murdered thousands to maintain his power and not one life was spared by his arrest in London and extradition to Chile.

Milosevic, the Stalinist-trained former head of Yugoslavia is in jail. He was handed over to the Danish authorities by a pro-capitalist regime headed by his replacement, Kostunica. Milosevic had lost power in a vast uprising of workers in Belgrade, was arrested later, and then held hostage while a deal was struck with western imperialism for $1.8 billion in aid. Although it appears that Milosevic will be on trial in the Hague, without being cynical one can guess that no NATO commander will be on trial with him. And by the way, the holding of hostages—even a Milosevic—is a crime against humanity. This fact did not bother either Kostunica or the E.U. and the International Criminal Tribunal for the former Yugoslavia didn’t notice either.

The ICC’s dangerous side

The Statute for the ICC allows (if the court thinks it likely that the individual is guilty) for a person to be charged and apprehended no matter what their nationality is, no matter where they are found, and no matter where their crime was committed. Under this procedure not only American pilots who dropped napalm and Kissinger who approved it are risking prosecution, so is Fidel Castro and, if they were alive, Lenin and Trotsky too. Clearly, if the judges and prosecutors believe even a fraction of the horror stories spread by capitalist propaganda, none of these revolutionaries would escape.

We must not sow illusions

Amnesty International works tirelessly to free political prisoners and support the rights of minorities. But they and their members are also most prominent in the U.S. writing legal briefs, putting out press releases and writing popular essays in support of the ICC. This is a mistake. Like every other organization created and controlled by the world capitalist class and given police powers (that is, the power to exert physical force), the ICC will act in the best interests of that class and not the working class. The truth is that the Statutes offer very little to help and they will most certainly provide world capital with just a more subtle instrument for subduing the working class. The ICC will not defend the working class tomorrow any more than the UN is defending us today—that is, not at all.





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