Now, however, the U.S. Supreme Court may slam shut the door on [civil suits brought by foreign citizens], relying in part on the argument that other countries do not offer such relief.
Is it a bad thing that I refuted, in my head, convincingly, an argument for stronger global war-crimes courts merely by referencing an episode of “The West Wing”? (See gated excerpt of the article above.)
I mean, yes. Of course, it is. But…
The roots of the argument, by a very smart person (Pierre-somebody) writing in the March/April 2013 issue of Foreign Affairs, are in the usefulness of the so-called Alien Tort Statute in the United States, which says, generally, that people who are not Americans can sue other non-Americans about non-American things in American courts.
This seemingly nonsensical law, which was passed in 1789 for (I say) kind-of obscure reasons, has over the last few decades become serious business. In 1980, a federal appeals court ruled that the statute could be used to put pressure on the foreign abusers of human rights.
And so 30 years later, as you might have guessed from the blockquote above, the Supreme Court has given hints that it might scuttle this interpretation and, as our correspondent puts it, “slam shut the door on such plaintiffs.” This leads our man to conclude, innocently and helpfully, that more should be done to establish a global court, or network of courts, or some such, to adjudicate the grievous violations of the laws of humanity.
And, you know, broadly, we agree.
But I read through the article a few times, and leaving aside for the moment the cries of freedom, and the anguish of the oppressed (sorry), and the ambiguity, in any case, of the original intent of the Alien Tort Statute, I think Foreign Affairs has missed something.
Our correspondent acknowledges the conservative arguments against something like an international court for human rights, but does nothing to refute them. He doesn’t point out weaknesses, he doesn’t imagine contingencies, and he certainly doesn’t suggest alternatives.
For instance, in what our correspondent says is “among the strongest arguments” against such a plan, he recognizes that such lawsuits might give diplomats a headache. For example, and it is easy to see, a lawsuit filed in an American court by a Palestinian against Israel might mushroom into a foreign-policy, and public-relations, nightmare for the State Department.
Our correspondent, implausibly, responds to this by saying foreign ministries in these cases should be given veto power over such suits. “Human rights advocates may object,” he writes. You think?!
He goes on to breezily dismiss the concern that a country accused in one case might retaliate with one of its own, in frivolous reciprocity — Nothing you can do about that, he writes.
And so on. Each time he voices a convincing argument against his point of view, he clears his throat and writes confidently, There is some merit here, but it is not enough, and then sets his pen down.
Helpfully, he at least imagines a way forward. National legislatures need only to start small and ensure due process. Unhelpfully, that probably didn’t need to be written.
And so we come to Episode 5 of Season 3, when the chief of staff Leo McGarry (John Spencer) has a long discussion with Gen. Alan Adamley (Gerald McRaney) about whether the president (Martin Sheen) is going to support a treaty to form an international war crimes tribunal. Blah, blah, blah, right?
Anyway, General Adamley beats around the bush quite a bit, in what is probably a dramatic counterpoint to a similarly long-winded discussion going on at the same time between the president and Vice President John Hoynes (Tim Matheson).
But the general gets to the heart of the matter by reminding Mr. McGarry of their service together in Vietnam, himself as a forward air commander and Mr. McGarry as a pilot.
“Remember Operation Rolling Thunder?” he asks.
Of course, Mr. McGarry does. And I suppose the writers of “The West Wing” are asking for our patience here because it beggars belief that Mr. McGarry had never imagined that an airstrike during the Vietnam War, one of his airstrikes, could be interpreted as anything other than a strict military action.
But there it is. It apparently never occurred to him.
Reading from a file he has brought to Mr. McGarry’s office, the general begins to talk about a particular mission. He reminds Mr. McGarry that he was the one who had given him his instructions.
Mr. McGarry still can’t see it coming. Then he gets defensive.
“It was a military target,” he says.
The general explains otherwise. Civilian target. Civilian casualties.
“Why did you tell me that?” Mr. McGarry asks, with pain evident in his voice.
It’s a fair question.
Mr. McGarry is a recovering alcoholic, after all, not long out of a rehabilitation clinic. It’s not immediately obvious that jolting an old drunk with news like that late on a working day is a constructive thing to do, even if you are trying to score political points.
Neither does the general point out that he, too, could be a war criminal. He says pointedly, “you could be charged and tried for a war crime.”
I guess that Gen. Adamley needs to bring Mr. McGarry over to where the rest of us have been the whole time.
Hasn’t anyone at Foreign Affairs magazine considered that there might be many thousands of people right now who can be plausibly accused of war crimes of one stripe or another?
I mean, forget the Vietnam War. (Ugh, forget the whole strategic-bombing campaign of World War II.) Forget everything else, for that matter, before 9/11. And forget, even, Abu Ghraib, and that nut in Afghanistan, and those free-peeing Marines. Forget all that, and I think you still have big problems.
I don’t have an infrantryman’s badge or anything, but I can believe that there are lots of things that have happened over the past 10 years in Iraq and Afghanistan that might require spin and polish to endure a public retelling.
I’m not saying anyone’s military is harboring war criminals. I’m saying, These things are not always clear cut. And maybe, before we start a bunch of legal hocus-pocus, we should try to be on our best behavior for a few years first.
Like the general in “The West Wing” says, replying to another painful grimace from Mr. McGarry: “All wars are crimes.”
- Leo McGarry – The Savile Row Wearing King of The West Wing (wax-wane.com)