Ruth Wedgwood

Ruth Wedgwood

U.S. member of the U.N. Human Rights Committee; member of the U.S. Department of State's Advisory Committee on International Law, the Defense Policy Board and the CIA Historical Review Panel; U.S. public delegate to Organization for Security and Co-operation in Europe and Wehrkunde Munich Security Conference; founding member of Davos World Economic Forum Council on International Law; independent expert for International Criminal Tribunal for the former Yugoslavia; director of studies at the Hague Academy for International Law in the Netherlands, former professor at Yale Law School, visiting professor at University of Paris I (Sorbonne), Berlin Prize Fellow of the American Academy and Charles H. Stockton Professor at the U.S. Naval War College; former member of the Hart-Rudman Commission on National Security in the 21st Century, senior fellow at the Council on Foreign Relations and chief of staff to the head of the criminal division in the U.S. Department of Justice, chairing the attorney general's working group on informant and undercover investigative guidelines; served as federal prosecutor in the Southern District of New York; vice president of American Society of International Law, vice president of the American branch of the International Law Association and on the board of editors for American Journal of International Law, World Policy Journal, American Interest and PRISM; vice chairman of Freedom House; served as law clerk to Judge Henry Friendly of the U.S. Court of Appeals for the Second Circuit and Justice Harry Blackmun of the U.S. Supreme Court and as executive editor of the Yale Law Journal; commentator for BBC, NPR and PBS; J.D., Yale University

 

In recent years, consumed by the war against al Qaeda, we have addressed secrecy and accountability in a homegrown way — concerned with information the American executive branch has kept to itself, what was shared with the Congress (though a transcript is often not made at the instance of both parties), and who should take the blame for things that go wrong.  This has been a preoccupying exercise, for no one likes to be labeled as the father of an irregular event, and when made the object of surveillance, the American people tend to be jealous of their privacy.  The collection of MUDS and LUDS — now famous as telephone ‘metadata’ — may be familiar to every street prosecutor (or at least, to this former fed), but it has indeed not required even a search warrant in a criminal investigation.  This will not lessen the startle of John Q. Citizen — who does not like to suppose that someone could be following his every move.

But in welcoming public discussion of accountability in the campaign against terrorism, we have allowed evasion of a different aspect of decency — the question of how we address the circumstances of conspicuous violence and mass destruction in civil wars.  This is, so often, tantamount to another form of terrorism, since armed factions often deride the idea of an organized state and have no scruple about attacking civilians.

We have set up international war crimes tribunals to deal with the cruelties of terroristic acts in recent civil conflicts, but we have allowed the bending of their judicial neutrality to suit a politics of convenience.  The fact that such acquiescence has many authors does not improve its rank flavor, for it is the opposite of accountability.  Despite the high idealism of investigators, lawyers and judges, more than crumbs have been swept under the rug, to preserve a record that suits the evolving politics of friends and allies.  Criminal courts should be known by what is prosecuted and punished, not what is shredded or buried in their files.  An “arrangement” of the French variety also leads to a rank distortion of the historical record, inconsistent with any ideal of even-handed justice.  Certainly it undercuts a policy of deterrence, instructing that much will be forgiven, and indeed forgotten.

Two examples should suffice for this meme of evasion, with its averted eyes of silence.  The first is the civil conflict in Rwanda, which cost the lives of nearly one million people.  At the urging of the United States, a Hague war crimes tribunal was established by the UN Security Council, acting under the chapter 7 powers of the UN charter.  The court was given a mandate to examine any violations of the law of war, as well as acts of genocide and crimes against humanity during the bloody events of the calendar year 1994.  Investigations and prosecutions were, of course, supposed to go where the law would take them, without playing favorites.

It was logical that UN prosecutors would focus first on the terrible slaughter in spring 1994 — when some 800,000 Tutsis and others were beaten and cut to death by the brute means of cudgel and machete, wielded by the legions of Hutu Interahamwe.  The witnesses to these crimes were still resident within Rwanda, and the active cooperation of the victorious Tutsi regime was necessary to make the charges stick.

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Rarely has an American president displayed the capacity to carve memorable phrases out of the oak wood of the English language.  Abraham Lincoln was one exception, reared on Shakespeare and the King James Bible, stump-trained through his peregrinating debates with Stephen A. Douglas, and brought to the heights of moral discourse by the challenge of the American Civil War and the bloodbath of Gettysburg.

Barack Obama’s own rise in public life has also turned on his command of the King’s English — as editor of the law review at Harvard, as an autobiographer, and as an electoral candidate with the chops to choose his own words for the campaign trail.  Ted Sorensen and Richard Goodwin wrote the lines that burnished President John Kennedy’s reputation.  But the current resident of the White House has the cadence to write his own stuff.   Even for listeners who find the timbre of his voice a bit thin, the prose can be evocative.

Yet from the beginning, there was a whisper that Mr. Obama was not quite ready for the presidency — a view expressed by some supporters as well as opponents — based on the fact that he had not knocked about the world quite enough, nor dealt with the misshapen and aberrant men and groups who often start foreign conflicts.  It is a regrettable fact that martial opponents do not always respond to a well-turned phrase or an outstretched hand.   At times, a more kinetic language of action and deterrence is required.  This realization may come most reluctantly to people who believe in the power of reason.

Both aspects of this presidency were in evidence in the May 23, 2013, address on war and terrorism delivered at the National Defense University at Fort McNair in Washington, D.C. — a military institution located on a promontory point of the Potomac River, well-situated in the nineteenth century to repel any foreign navy that might be tempted to bombard the nation’s capital.

As the president’s military audience bluntly knew, the continuing fight against al Qaeda and the Taliban in Afghanistan and Pakistan has been costly and difficult to sustain.   We saw no choice when Mullah Omar continued to provide a safe haven in Afghanistan for the al Qaeda terrorist group and its leader Osama bin Laden after the September 11, 2001, attacks against the Pentagon and the World Trade Center towers — attacks that were intended to kill many thousands of people and decapitate the American government.  The ghastly innovation of using fully-fueled civilian jetliners as aerial bombs amounted to a grotesque act of war.   The attacks made plain that the radicalization of thought among insurgent groups, inspired by the nihilistic preaching of the Egyptian writer Sayyid Qutb, was a dreadful and deadly force when combined with the failure of many North African, Middle Eastern and Asian economies to provide employment for young men.   Until then, we had not apprehended the full threat of this explosive combination, seeing terrorist incidents instead as singular and local, rather than as a global movement.  The organizational ingenuity of Osama bin Laden was not acknowledged when we boggled a chance to target him in the late 1990s.

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One of the key principles of criminal law is that its substance and reach should be public and transparent.   But that’s not always the case with international criminal law—at least, not when the law is made on the hoof in a diplomatic rush.

Thus, while the Obama administration has struck a friendly tone toward the decade-old International Criminal Court and its penal jurisdiction over various acts of war, it will need to be mindful that the Court’s long-arm jurisdiction may reach to unexpected places and protagonists.  When the bell tolls, it may affect our own troops.

One of the curious features of the so-called “Rome Statute” of the Hague-based International Criminal Court—created in a five-week treaty conference in July 1998, and now enjoying a new prosecutor who hails from South Africa—is an unprecedented “looking backward” jurisdictional rule that purports to authorize the Court to investigate and prosecute wartime events occurring even before the country in question joined the court.   This oddity—article 12(3)—was added to the treaty in the midnight hours, on the very last night of the conference, by an unnamed member of the treaty “Bureau,” without any chance for discussion or debate before an adopting vote was taken on the whole text the next morning.  It has no legislative history and no named author.

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