Ending NATO’s double standard

By David Rohde
May 18, 2012

This weekend in Chicago, President Obama will gather with more than 60 heads of state to hold NATO’s 25th anniversary summit. He and other leaders will convene as a Western-created system of international justice – enforced in many places by NATO – has grown stronger, and raised expectations of accountability around the world.

This week, Bosnian Serb general Ratko Mladic finally went on trial in The Hague for war crimes in Bosnia after evading justice for 17 years. Last month, former Liberian President Charles Taylor was convicted of aiding and abetting war crimes by a separate international court. And in a surprising example of the spreading expectation of international justice, protests among the Syrian diaspora have included signs demanding Bashar al-Assad be sent to The Hague.

At the same time, as people around the globe see war criminals brought to justice, they want to see the world’s most powerful armies held accountable as well. Outside the U.S. and Europe, there is a growing sense of a two-tiered system of international justice. The West puts others on trial for war crimes, the argument goes, while exempting its own forces from scrutiny.

“There is a contradiction,” said Richard Dicker, the head of Human Rights Watch’s International Justice Program. “As the reach of justice extends further and as expectations of justice increase, the shortcoming in the uneven landscape – the uneven application of law to all – becomes more stark.”

Some of the perceptions are exaggerated. The U.S. and NATO are not evil incarnate, nor are they perfect. A recent examination by Human Rights Watch, for example, found that the seven-month NATO bombing campaign in Libya killed at least 72 civilians but that the alliance took major steps to try to avoid such casualties. Taylor and Mladic, meanwhile, went out of their way to kill civilians.

The belief that there is a double standard, though, is visceral outside NATO. In conversations with me over the last several years, everyone from Chinese intellectuals to Bosnian Serb civilians to Taliban fighters have passionately believed that the West’s crimes are far worse than those of the people hauled before international tribunals.

Hina Shamsi, the director of the American Civil Liberties Union’s National Security Project, said America’s actions as it targets suspected terrorists around the world undermine its role in bringing fugitives like Taylor and Mladic to justice.

“The U.S.’s use of drones, targeted killings and indefinite detention is actually destabilizing the international system of law it helped to create,” she said.

One hundred and twenty-one states have signed and ratified the treaty that created the International Criminal Court in 2002 and agreed that their citizens can be tried there for war crimes. The world’s three most militarily powerful nations – the United States, China and Russia – have declined to join the treaty, depriving the new, Hague-based court of binding jurisdiction over their citizens. As a result, in most cases it would take the passage of U.N. Security Council resolution for an American, Chinese or Russian to be tried by the International Criminal Court. Considering the Security Council vetoes that the U.S., Russia, and China enjoy, that will likely never happen.

The system plays out unevenly in other ways. Moscow’s veto protects those close to it, such as Syrian President Assad. China’s veto, for example, protects North Korea’s autocratic regime. And critics of Israel say America’s veto does the same for Israeli transgressions.

“The most powerful states – among whom there are great distinctions in commitment to the rule of law – nonetheless hold themselves at a distance or beyond these international justice standards,” Dicker said, “creating the perception – and the reality – of hypocrisy and a double standard. And that needs to change.”

In some ways, there is a double standard. To be blunt, Taylor and Mladic are comparatively easy pickings. International pariahs with no powerful allies, their arrests and convictions cost U.S. and NATO leaders little political capital.

Still, their presence in the dock is a positive step that creates a sense of justice for victims. Their convictions and the creation of the International Criminal Court may deter future war crimes, and should be hailed.

But at the same time there is a widespread belief that American, NATO and Israeli forces do not face the same level of accountability. And some elements of the so-called war on terror do skirt international law. The Obama administration stopped some of the Bush administration’s worst practices but has embraced others.

The U.S. should join the International Criminal Court, as nearly all of its NATO partners have. It should end over a decade of indefinite detention without trial in Guantanamo Bay. American drone strikes should be carried out by the U.S. military, be publicly announced, and no longer be covert operations run by the CIA. And when reports of drones killing civilians emerge, they should be investigated, with compensation paid to the victims – as the laws of war require.

But American drone strikes in Pakistan are not as indiscriminate as the Russian army’s shelling of Grozny. The profiling of American Muslims by the New York City Police Department was shameful, but it is not as pervasive as the Chinese government’s harassment of Uighirs. I am not justifying the excesses of America, particularly post-9/11. Our offenses are inexcusable, must end and only reinforce our rivals’ conspiracy theories.

An example of how the conduct of war has skirted, distorted and outpaced the laws of war emerged in Idaho this week. After maintaining a yearlong silence, the family of Sgt. Bowe Bergdahl – the only American soldier in Taliban captivity – gave a series of interviews to the American news media.

The Bergdahls called on the Obama administration to move ahead with peace talks that could involve the exchange of five Taliban prisoners currently in Guantanamo Bay for their son, who has been held captive in a Taliban safe haven in Pakistan’s tribal areas for nearly three years. Legally, the Taliban detainees are not prisoners of war. Nor is Bergdahl. They both exist in an undefined legal – and political – “war on terror” gray area.

(I’ve talked to the Bergdahls intermittently as they have struggled with what to do. They hoped that my seven-month kidnapping by the Taliban in 2008-2009 might have given me some answers. Unfortunately, I had none for them.)

After the Bergdahls went public, administration officials said they were open to continued negotiations. But it’s clear there’s little chance of a deal during a U.S. presidential election campaign season. Peace negotiations with the Taliban – or a prisoner exchange – will be assailed by Republicans as appeasing terrorists.

I am not arguing that more closely abiding by international law will somehow make militants no longer hate the United States. Some of them can only be countered with lethal force. But closely following the laws of war is in our strategic interest. It undermines those who accuse the U.S. of hypocrisy and helps win the support of those who hold the same ideals.

The best course for the United States – and its NATO allies – is to pledge this weekend in Chicago to more strictly abide by the laws of war they have created.

President Obama and other leaders who ignore the perception of a double standard do so at their peril. The U.S. and NATO should ally themselves with the laws of war. They should not allow those standards to become their enemy.

PHOTO: A man wearing a mask of Syrian President Bashar al-Assad demonstrates against Assad in front of the International Criminal Court (ICC) offices in The Hague, June 7, 2011. REUTERS/Michael Kooren

12 comments

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Mr. Rohde, I’ve been thinking along those lines for years.

Thank you for a great insight.

Posted by w.burton | Report as abusive

It’s a good commentary, but too equivocal. Either there’s a double standard or there isn’t. But at least it pushes back some.

Posted by Calfri | Report as abusive

Perhaps, but might is right

Posted by jwab | Report as abusive

Hypocrisy has been a staple of Western Democracies for quite some time.

Posted by TheUSofA | Report as abusive

As much as the more developed countries preach the rule of law they seem to want to live like ancient Kings who were the law but were not subject to it.

And so many seem to be willing to accept that questioningly.

Posted by paintcan | Report as abusive

Excuse me – Unquestioningly.

Posted by paintcan | Report as abusive

There may indeed be a double standard. We can avod the entire problem by not acting at all. Which probably is the best way of dealing with problems in far away countries we don’t know anything about.

Posted by P.H.Bakka | Report as abusive

There’s no shortage of hypocrisy anywhere in the world, including those which are critical of NATO. Geopolitical advantage is always the primary factor for turning a blind eye to atrocities, and it is not only the West which has deliberately engaged in such policies. Which eastern or Asian countries have stepped up and made sacrifices to protect civilians from atrocities or to protect the rule of law in other countries? Most do not even do these things in their own countries.

Posted by Greenspan2 | Report as abusive

As the author points out, 27 out of 28 NATO members did ratify the treaty establishing the ICC, and are bound by its provisions. If tie accountability and credibility of NATO are diluted, then it seems rather unlikely to be because one of its members enjoys exceptional status in this respect.

This point on its own is surely well worth debating, and the author does it no service by pretending for the sake of a good column that it has something to do with the USA’s status. For further evidence that the issues are unrelated, one need only think back to all those Internet videos of “NATO troops raping Serbian children” from the 1990′s – years before the ICC was established.

One could, perhaps, go even further. Perhaps the only thing which stops the ICC being perceived in places like Serbia as merely victor’s justice, as merely NATO justice, is the fact that the USA apparently fears it? It is at least something to consider.

Posted by Ian_Kemmish | Report as abusive

“Caesar’s wife must be above reproach” … and so, too, must we be above reproach if we wish to preach to the rest of the world, issue human rights reports on countries, and try and imprison war criminals. It is in our interests to use our current position to enforce the rule of law including to ourselves. When, at some time in the future, we are no longer omnipotent, we, too, will want the rule of law.

Posted by majkmushrm | Report as abusive

Rules of war? What are the rules of war, Mr. Rohde? Did you formulate them?

Posted by JamieJR | Report as abusive

Very pleasantly surprised to see a piece like this. If only it were more common in US discourse!

The international legal framework which both US political parties worked so hard to build after WWII and for decades after, is now being delegitimized by the US herself. The erstwhile party of Lincoln now seems completely adrift in magical thinking, gazing into a rose-colored mirror.

Posted by William_Wallace | Report as abusive