bob kerrey - international justice, war crimes and terrorism

8/18/2019 Bob Kerrey - International Justice, War Crimes and Terrorism

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International JusticeWar Crimes andTerrorism

X HE topics addressed in this volume—international jtistice, warcrimes, and terrorism—are among the most important thatmankind faces in th e twenty-first century. They are also topics tha tmake us uncomfortable precisely because they are often ethicallyambiguous. The September suicide mass murders that foctisedAmericans' minds on the random, immoral, and destructive vio-lence of terrorism were not ethically ambiguous. As a result theymoved the question of how to prevent such attacks to the top ofour domestic and foreign policy agendas.

Th e solutions, however, are no t as obvious as we wish and theywill not be found merely in painful reexaminations of UnitedStates actions in the past. Last spring, when I chose to make pub-lic the details of a military operation I led during the VietnamWar that end ed with the death of innocents, I said I hoped to turnthis story into an educational mom ent. Unfortunately that was

no t to be. It became ano ther ho t current event to be argued fero-ciously until the next hot event came along, and was then quicklyforgotten.

This conference is a result of the promise I made when hopefor an educational moment was still alive. To be clear: I do notintend to meekly submit to cross-examinations or self-indulgent,one-sided criticism of United States foreign policy during th e warin Vietnam. Open and honest evaluation of America's conductduring that war and other wars has led to substantial improve-ment in our military training and behavior as well as our attitude



1 0 2 0 S O C I A L R E S E A R C H

In any discussion about America s conduct in war, it is best toremember our tendency to withdraw from the world, especial lyafter a terrible military experience. e withdrew after experienc-ing the horror and slaughter of the first great war of the twenti-eth century. \ \^ stacked our arms, downsized our military, andatte m pte d to retu rn to norm al. \ \ ^ refused to ratify- the treaty cre-at ing the League of Nations. V\ e enacted restrictive, racist immi-gratio n laws. T he Gre at W ar may no t have been the war to en d allwars but Americans were unambiguotisly and ethically deter-mined that i t would be the last European war with which wewould be involved.

WTien the National Socialist Partv came to power in Germanyon Ja nu ary 31 , 1933, the he ad of this university, Alvin Jo h ns o n ,knew th at intellectuals, an d Jewish intellectuals in particular, we rein trouble. He began an effort to raise the money to provide arefuge—a University in Exile—that became one of the greatmoral acts in the his tory of American higher educat ion. And lestwe forget, i t was not a decision fully embraced by public opinion.Americans steadfastly resisted getting involved. Franklin DelanoRoosevelt had to resort to the Lend Lease Act of 1941 to provideassistance. It was no t until we were attacked on D ece m be r 7, 1941 ,and Germany declared war on us, that we mobil ized and entered

the conflict.After the Second W^rld War, the American people chose a

more in ternat ional course . The Uni ted Nat ions , the Bre t tonWoods agreements , NATO, and the Marshal l Plan s tand as mon-um ents to our und ers tan din g of how the wor ld s peace and secu-rity depend upon our not yielding to isolationist impulses. Stil l ,we slashed our defense spending and were able to provide rel iefto Europe only because of presidential determinat ion and therepu tat ion of G eneral G eorge M arshal l. We certainly did no t sen d



KEYNOTE ADDRESS 10 21

The K orean War is an even m ore striking exam ple of what can

happen when the United States disengages following a terribleand bloody war North Korea s invasion of South Korea occurredafter we withdrew much of the Seventh Army from the peninsulaand after ou r secretary of state indicated that Sou th Korea w s nota strategic interest of the United States. Even after the invasion.President Harry S. Truman did not have enough public supportto ask Congress for eithe r a declaration of war or involuntary con-scription. Public support for the war evaporated in short orderalong v ith Trum an s chances for reelection. No d oub t this mem-ory contributed to our unwillingness to act to prevent Soviettroops from entering H ungary in 1956.

I cite this history at the beg inn ing of this pape r because Amer-ica has not always covered itself in glory during the great ethicalchallenges of the past— not ju st in the way it has co nducted itselfin war, but by how it has conducted itself in avoiding war.Proudly citing our superiority in opposing some specific warencourages us to forget how ou r ethical preference for pacifismand neutrality in 1938, 1939, and 1940 becam e the g reatest of all

ethical disasters.In the papers in this volume on the concept of ajtist and there-

fore legal, we have been rem inded how difficult and important itis to morally justify what m ust be done in any war, even one tha tis fought by combatants who follow the Geneva Conventions tothe letter. To wage a war we must train our youth to use violentand deadly means to defeat an enemy force that has been orga-nized against it. Killing is the business of war.

Few things darken my mind more quickly than listening to two



1022 SOCIAL RESEAR CH

considerable power for good we must be capable of understand-ing when war itself can be ethically justified.In the section on the train ing of the militarv that appears in this

issue, we read detailed explanations of the actions national go\^ernments take to make certain their soldiers do not \iolatedomestic laws that have been written to implement internationaltreaties. Few things are more difficult than to bring the calm, rea-soned approach of the classroom into the irrational, bloodstainedenvironment of the battlefield.

Another set of papers in this volume help us understand thefounding arguments and rationales for international tribunes,their use today, and their potential in the newly created Interna-tional Criminal Court. Eew things are more confusing than to berem inded that a judicial process one opposes and condem nstoday is a process one has supported in the past when it suited

one s political purposes.These discussions will lead us to the question of how to define

and respond to terrorism; we trust that some ideas will emerge toguide us into a future where terrorism and crimes against hum an-it) become increasingly rare. It is always our hope that our argu-ments will produce grea ter clarit\ and a grea ter willingness to ru nthe risks that are always associated with holding controversialpolitical opinions.

To begin the argum ent, I would like to express my opinion thatwe must take care not to tilt too much in the direction of usingnational and international tribunals as a remedy for war crimes.

We should also pay attention to the value of using military effortsto deter, defend against, or to stop the violence of large-scale




where the idea of a nation-state seems like fantasy or where cor-rupt religious beliefs have led people to think that suicide-mur-ders are a pathway to salvation.

well-trained b ut deadly military committed to conducting waraccording to the specific requirements of the Geneva Conven-tions can prevent crimes against humanity. Few shou ld doubt tha tthe intervention by the United States and NATO in Bosnia andKosovo had the effect of ending ethnic cleansing and setting upan international tribunal against Slobodan Milosevic. Few should

have any qualms about concluding that our unwillingness tointervene with a military force in Rwanda was responsible forpermitting o ne of the twentieth-century s g reatest crimes to takeplace. Few should doubt what would be the fate of the Kurds liv-ing no rth of Iraq s thirty-sixth parallel and the Shia south of Iraq sthirty-third paraUel without the almost daily missions being flownby United States and British pilots and their crews. And fewshould doubt that military intervention in Afghanistan has sub-stantially weakened the capacity of those who perpetrated thecrime against the United States and the free world on Septem ber11 and just as importandy liberated the people of Afghanistanfrom the terror of their own government, giving them hope thatpeace may finally be return ing.

Giving ho pe to those who are without hope does no t jus t m eandemonstradng a willingness to intervene with our military. It

means we must be willing to help do the risky, messy, and neverperfect work of building stable democracies with marketeconomies. It means we must be willing to transfer some of ourwealth and credit, especially in those cases where political leadershave demonstrated the courage an d will to end debilitating prac-fices of corrup tion. It means the developed world must keep itstrade policies open so that the developing world has a chance tosell to our markets as well as a fighting chance to get a fair reso-lution of trade conflicts at the World Trade Organization. It

t ithd f th ld b f il



1024 SOC IAL RESEARCH

At the same time we must acknowledge and understand therisks that come with our leadership and our involvement. Takingsides in bitter domestic disputes provokes opposition. Osama binLaden s initial anger toward the United States came from ourdecision to leave troops in Saudi Arabia after the Persian GulfWar as a deterrent against the possibility that Saddam Husseinmight become an aggressor again. To us this is a reasonable andnecessary thing to do. However, to the Muslim believer w are infi-dels who desecrate the holy places of Mecca and Medina. To theMuslim believer, killing Americans is a reasonable and necessarvthing to do.

I do not bring moral relativism to this analysis. I believe thepresence of United States forces in Saudi Arabia has helped sta-bilize the region. I do no t believe radical Islamists are justified intheir killing. The poin t I seek to make is that the will to in tervene

to reduce the threat or the fact of crimes against humanit) isoften inversely correlated with the perceived risks associated withthe intervention. These risks include the financial costs, thehuman costs, and the possibility that h istory might ju dge youractions harshly.

Before I proceed to offer a short list of what I believe the worldcommunit) must do to deal with terrorism and war crimes, allowme to present a second controversial opinion. I believe the sin-gularity of United States militar) supremacy is a ver) good thingfor those of us who want the world to become more peaceful,prosperous , and jus t. And critics have it wrong when they expressconcern that this supremacy makes us overeager to deploy ourforces in the world. Critics should be just as concerned about theopposite. They should worry that the risk assessment done byUn ited States presidents and m embers of Congress before au tho-

rizing the deployment of any of our arm ed forces will cause us todisengage and do less.




threat reduction are understandable and justified bases for mili-

tary action. However, self-preservation is an instinct that isnow here near as noble and worthy as its opposite: th e v\dllingnessto risk your life for someone else. And it is obviously a self-limit-ing effort. At some po int the cause begins to be too self-indulgentto sustain. In the current case I am personzdly appalled at theextremes to which President Bush and Congress are willing to goto make us feel safer. Total spending increases on defense andhomeland security will total 80 billion between this year and

next. I would feel safer if they converted the 80 billion in to 1,000 bills and threw them out the window. Along with last year'stax cuts, this spending will guarantee that the United States doesno t have the resources or th e will to make the investments need edto close the widening gap between the world's haves and theworld's have-nots and to make necessary investments in the hea lthand education of our people.

My recommended agenda for dealing with the problem ofinternational jtistice and war crimes has four parts.

First, we will need a strong military force, multinational wherepossible and unilateral where necessary, to signal to internationaloudaws tha t we will no t waiver if they threaten the open , secular,tolerant, and multi-ethnic societies that they consider such athreat.

Second, we need better training of our own forces in both theexisting rules of war and the d ire consequences of violating thoserules.

Third, we voll need a doubling or even a tripling of our for-

eign assistance com bined with grea ter liberalization of ou r tradepolicies.h ll d l l h h




Let me briefly add detail to each of these four items.W e need for a strong and effective militarv force. Here the most

difficult issue is Unite d States suprem acy. It is an u np lea sa nt tru thto some in the free world, but it is a truth nonetheless. The suc-cessful intervention in Bosnia would simply not have been possi-ble without United States leadership and participation in thediplomatic, intelligence, and military effort. Likewise in Kosovo:as long as the effort was under the control of the internationalcom mu nity, we witnessed the h or ro r of ethn ic cleansing an d theslaugh ter of inn oce nts. As soon as the U nited States put i ts weightbehind a NATO intervention, the balance began to swing towardpeace .

A more painful example is Rwanda. Only the United States isblamed for not interv^ening to stop the genocide because theworld knew only the United States had the capability to get the

jo b d on e. Th at we did n oth ing will ma ke tis feel sham e for as longas our nation survives with a memory worth praising. No otherpeople on earth carry such a burden.

In the war against the l Qaeda network in Afghanistan andar ou nd the world, the U nited States has taken the lead. This is jus-tified and necessary because those who have declared war on lib-eral democracies and who enthusiastically embrace the use ofattacks on civilian populations attacked the United States for areason. We are the House of W r We are the number one enemy,not because of our policies in the Middle East or our support forIsrael. We are target number one because of our economic, polit-ical, and military success. If we were in second place, we wouldsimply not be targeted.

T he issue of what justifies th e use of military force is of pr im aryimportance. To illustrate my views, let me use two examples. I

cou ld n ot justify eith er th e cost or th e killing in Afgh anistan onth e basis of self-defense or th re at re du cti on alo ne . I can justify the




nation-state exists. Likewise in Iraq, I am not convinced that mili-

tary intervention is justified to reduce the threat of Iraq s weaponsof mass destruction. On the other hand, I would support militaryintervention if the objective was the liberation of 5 million Iraqisand the establishment of a democratic Arab government.

A second add ition to the agenda is a need for honest and openevaluation of our military training, especially in times when forcestructure is increased rapidly. I come to this issue with consider-able personal experience and believe strongly that it is not

enough for us to give our soldiers a card telling them about therules of war, a practice tha t became United States law after we rat-ified the 1949 Geneva Conventions. Nor is it enough to selectivelyprosecute offenders. Kwe expect the law to be enforced fairly andjusdy, we must provide every serviceman and servicewoman with athorough education and training about the details of the law andthe consequences of what could happen to them if they violate

this law. Otherwise politics and circumstance vn

determine whois prosecuted and who is not.In this area there is, for all the reasons cited earlier, consider-

ably more risk for United States military personnel than for thearmed forces of other nadons. WTien a United States soldierbreaks a law, it is much more likely to become an internationalinciden t than when the soldier of any other nation does the same.Unless aind unfil some oth er free nado n becom es the world s pre-eminent military power, the sons nd daughters of American feim-ilies will be called on more often to put their lives and theircharacters on the line. Still, the United States mtist lead on thisissue by setting an example just as we must with other dangers,such as weapons of mass destruction, the spread of AIDS, andglobal climate change.

A third addition to the agenda is the level of international aid

and less than open trade policies of the United States and theEuropean Union; bo th fall appallingly short of what is needed to




posed by terrorism. There is increasing radicalism among Mus-lims in Sing apo re despite a pe r capita inc om e of 29,000. .4nd—dare I use the example?—Timothy McVeigh's murderous act wasnot caused by economic disparities. Still , where there is no eco-nomic or poli t ical hope, there is unquestionably a greater poten-tial that violent means will be used to achieve political objectives.

W e simply m ust sp en d m o re of ou r inc om e to he lp th e devel-oping world. And we cannot afford protectionist t rade pohcies,which make it nearly impossible for developing countries toexport to the two largest consumer markets, the United Statesand Europe. We should condit ion economic assistance on poli t i-cal reform and the el imination of the kind of corruption seen inNigeria and Angola. We should use nongovernmental organiza-tions to help struggling democracies write good laws and buildthe structures of civil society that will hold them together. How-

ever, we cannot allow the need for political reform and capacitybuilding to become an argument against further material aid.

Closely associated with the issue of aid and trade are the issuesof immigration and domestic drug policies. Anti- immigrantimpulses in the developed world are dangerous and counterpro-ductive and must be resisted. The economic and social success ofNew York Cit)' is the best arg um en t in favor of liberal im m igratio nlaws that work to reduce the burden and paperwork placed onthose who seek econ om ic op po rtun it ies. No mili tary, aid, or tradepolicies will succeed if we allow those who view immigration as adanger to win the argument . The connect ion between terror isman d dr ug policies is less obvious an d I will ad d n o furth er detailsbeyond the assertion that such a connection exists.

A final addit io n to the agen da: the U nited States Senatesho uld ratifv ' the treat) ' creatin g the In tern atio na l C riminal Co urt

so that the United States can participate fully in its establishmentan d o pe ratio n. Failure to do so will no t prote ct U nited States mil-




ical leaders will have no power but refusal to cooperate to make

certain that proper safeguards and sanctions are placed on indi-viduals and organizations who make unsubstantiated charges.Citizens who debate this issue should rem em ber th at ratificationis not permanent. Withdrawal from any treaty always remains anoption.

I reach this conclusion even though I am not comforted byassurances given by Secretarv General Kofi Annan and others thatpolitics will play no role in the cou rt s delibera tion. In opendemocratic societies politics almost always plays a role in theprocess of jus tice . I would respectfully urge those who try to offerguarantees of a politics-free ICC to stop m aking this argu ment lestthey persuade supporters such as myself to change our minds. Iwould likewise encourage supporters of the ICC to openly criti-cize and condem n indi\iduals and organizations that tise the newcourt to score political points. Failure to do so could have a terri-

bly negative impact on the safety and security of the free world.I choose to make one controversial suggestion at the close of

this paper: the possibility of be ing accused of war crimes will de tersome military actions w would prefer to see happen . I have heardsome proponents of the ICC say they hope this occurs and thatpolitical leaders, especially Am erican, will become far less willingto authorize the tise of force. To that, I merely urge you to read

the 50-plus-page declaration of war issued in 1996 by Osama binLaden. He counted on the United States being unwilling to runthe risk. A lot of people died because he believed we would donothing.

I also urge you to examine the reluctance of United States pol-icymakers to authorize and United States military leaders to useforce to prevent Slobodan Milosevic s threa tened invasion of

M ontenegro in 1999. Had he sent his army south to bolster his re-election efforts it is likely w would have stood by and watched the



1030 SOC IAL RESEARC H

That said I still believe strongly in the need for the U nitedStates to ratify the treaty creating the International CriminalCourt. My belief is that the potential benefits of the court—deter-rence of atrocities that could provoke United States military inter-vention—far outweigh the potential negatives: deterringnecessary United States intervention . If we have any ho pe that therule of law will become an active force for good throughout theworld we have no othe r good choice.

It is with considerable pride that I note the quality of the dis-ctissions taking place at this conference on a subject that is atonce important and taboo. It is with considerable hope that wishthese discussions will make their way into the popular debate andthat they contribute to a more just and h um ane world.

bob kerrey - international justice, war crimes and terrorism

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