Time and again, the United States takes positions on human rights issues that drive our allies nuts. As Michael Ignatieff, a former leader of Canada's Liberal Party, recently observed: "From Nuremberg onward, no country has invested more [than the U.S.] in the development of international jurisdiction for atrocity crimes, and no country has worked harder to make sure that the law it seeks for others does not apply to itself."
It was along these lines that President George W. Bush in 2002 "unsigned" the treaty that led to the creation of the International Criminal Court. The ICC now has 120 countries onboard. But because of concerns that American citizens might one day be brought before such a tribunal, the United States remains the only western industrialized nation that is not a party to the court.
Even the International Genocide Convention-which shouldn't have been controversial at all-faced tough sledding in the U.S. Senate after being adopted by the United Nations General Assembly in 1948. In fact, it wasn't ratified for almost 40 years, and then only after the Senate attached a so-called "sovereignty package" that essentially stripped the measure of its binding power.
Call this American exceptionalism. Call it hypocrisy. But at the very least it lends an element of instability to a system of laws and norms that is largely in America's interest to support.
Pierre-Richard Prosper is a globe-trotting, Los Angelesbased attorney whose fascinating career has straddled this paradox. In the 1990s he drew international praise when, as a prosecutor for the International Criminal Tribunal for Rwanda, he won the world's first genocide conviction at trial. He was also involved in the effort to bring war criminals to justice in the former Yugoslavia. However, as writer Edward Humes
shows in this month's cover story ("The Extricator"), life for Prosper got more complicated after 9/11 when President Bush's "war on terror" shifted into high gear. That's when, as an ambassador-at-large, he found himself in the middle of a heated debate over how to deal with the detainees at Guantánamo.
"Prosper definitely exerted a moderating influence within the Administration," Humes reports. "In fact, he spent a long time trying to get as many detainees out of Guantánamo as he could while others in the administration were pushing hard to hold on to them forever."
Still, Prosper is no whistleblower. And to this day he remains noticeably reluctant to talk about the alleged crimes and abuses of senior Bush officials. He also remains unalterably opposed to the ICC, which unlike the Rwanda Tribunal that he served on reserves the right to prosecute human rights violations in countries that have fully functional legal systems.
Also in this issue, Tom McNichol
writes about a different kind of paradox - this one involving UC Berkeley officials who wouldn't let law school students represent student protesters during a series of on-campus disciplinary hearings ("Who's Teaching Whom?"). "It seems surprising that the very same people who would celebrate Berkeley's place in history as a bastion of free speech would take such a hard stand," McNichol observes. "But then again," he adds, "it's one thing to read about what long-haired kids were doing in the sixties, and quite another when those kids show up on your lawn."