President-elect Obama is the living embodiment of what human rights can do – the product of Brown vs Board of Education and the achievements of the civil rights movement in the 1960s. His victory is greeted by a world where suddenly the American flag is waving not burning, in the expectation that 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 that Team Obama is committed to global justice: how can they re-engage with the struggle to achieve it?
Firstly, by supporting the International Criminal Court. The treaty establishing it was signed by President Clinton before he left office: George W Bush "unsigned" it, then approved the American Service-Members Protection Act (Jesse Helms's "bomb the Hague" bill) which empowered him to use force to free any American charged with war crimes. This puerile behaviour continued for several years, with the US threatening to withdraw aid support from any country that joined the court. Despite this bullying, 108 states have by now ratified the court's statute, and the US will have a new opportunity to negotiate terms for its own membership at the 10-year review conference, to be held in Uganda in 2010.
The ICC is now up and running, with several Congo war lords on trial for recruitment of child soldiers and an indictment confirmed against Ahmed Harun, whom the prosecutor alleges is the architect of mass murder in Darfur. The US has a moral duty to help the court at this juncture, because Darfur was referred to it by the Security Council in 2004 after Colin Powell had accused the Bashir government of genocide. It will now need American muscle to pressure Sudan to surrender Harun, who has been elevated to minister for humanitarian affairs, from which post he now interferes with aid efforts. The outcome of Harun's trial would decide whether the prosecution's genocide charge against Bashir himself should proceed.
The Obama administration will have no difficulty in closing Guantanamo. But how can the US atone for the use of torture on Donald Rumsfeld's watch? By ratifying the Torture Convention, for a start. And then by taking an initiative that would, for the first time, provide a meaningful safeguard for its prisoners of war, namely by waiving its right to confidentiality in Red Cross prison visitation reports.
The importance of such a step cannot be overestimated. Whenever Rumsfeld was asked about treatment of prisoners, he would claim that they could not possibly have been tortured because they were regularly visited by the Red Cross. The truth, of course, was that they were treated inhumanely, as the Red Cross in fact reported. But because of its insistence upon confidentiality, its reports were sent in utter secrecy to commanding officers, who, in the case 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: Bill Clinton had to sign the death warrant for an insane man, Ricky Roy Rector, to clear his path to the White House, and during this campaign Obama was forced to promise that he would not interfere with some states' plans to execute child rapists. What he can do, however, is to use federal powers to stop the execution of foreign nationals who have been convicted in breach of international law, usually by denying them consular access when arrested, contrary to the Vienna Convention. There has been a number of such executions, condemned by the International Court of Justice and "regretted" by a Bush administration that did not lift a constitutional finger against them. There are more in the death row pipeline, and Professor 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.
One bad idea that gained traction from Democrats and Republicans in the course of the election campaign was to replace the United Nation with an organisation open only to democracies. There might, however, be some point in creating an alliance that could deal with two rights which the UN has proved utterly incapable of protecting, namely to representative government and to freedom of expression. The British Commonwealth has abjectly failed in these respects too. (See Fiji, Zimbabwe, Bangladesh, Singapore, etc.) An American-led alliance might succeed, at least in simple matters such as forcing the army dictatorship in Fiji to hold elections. (This could be achieved overnight, if the US, Australia and New Zealand combined to threaten airline and football isolation.)
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 in the new administration, 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 places such as Darfur and the Congo where there is no peace to keep.
The world this week 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 a 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' (Penguin)
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