No justice, no peace
With human rights tribunals closing their doors to claims against the American government, what options remain for Afghans and Iraqis, asks Curtis Doebbler*
America would like its enemies to put down their guns and trust in the good old American spirit of justice and freedom. If they would just submit to the United States' illegal occupation of Afghanistan and Iraq everything would be alright. This may sound sensible to an American tucked away behind his enormous television set, watching other Americans make war with an increasing number of enemies as if it were a video game, cheering on cue for the president.
But think about it for a second, does it really make any sense? If America -- the alleged leader of the world -- acts illegally, why should not our enemies, who have far fewer opportunities to use legal forums, not also use all means at their disposal to stop and reverse the US's illegal actions? One way to examine this question is to review the lawful means of recourse open to the Afghans and the Iraqis. The oft-repeated mantra that if legal means of redress exist recourse to unlawful means are prohibited might serve as a litmus test of the legitimacy of American claims.
What are the legal means that can be used to end and reverse the US's illegal invasions of Afghanistan and Iraq? Of course, US courts are excluded, having decided that the American government can do no wrong when it comes to acts of violence against foreign countries. Even if American President George W Bush lied to the American people to trick them into wars in Afghanistan and Iraq, the most that can result from establishing illegality is his impeachment -- unlikely as he remains popular with the American public and even more so in Congress, the only body with the authority to impeach him.
While American courts provide individuals whose human rights have been violated access to justice under the Torture Victims Protection Act and the Aliens Tort Act, action against the US government is all but impossible. Friends of foreign victims of American aggression and inhuman treatment have been told that they do not have standing, or merely that foreigners not in the US have no rights to claim before American courts. In the last decade, in a decision enjoying the concurrence of America's current Chief Justice William Rehnquist, the United States Supreme Court denied Haitian refugees in Guantanamo Bay any rights before American courts.
If it is true that other governments might defend the victims of American violence by bringing actions to the International Court of Justice, none have been willing to do so. Their rhetorical condemnations of the US have amounted to little more than passive consent. Perhaps they are justly frightened about the US's reaction.
During the height of America's attacks against Afghanistan I was involved in an attempt to bring a case before the International Court of Justice against the US government. To do so, however, it was necessary that the Taliban government of Afghanistan withdraw its reservation to the eventual jurisdiction of the court that was attached to the treaty known as the Montreal Treaty for Crimes against Civil Aviation. This treaty establishes the legal procedures that a state must follow if it wishes to take action against a person, or persons, committing acts of violence on aircraft. The Taliban government was willing to consider such an action, but the day that withdrawing the reservation was to be discussed in Kandahar -- a fact of which the US government was aware -- the US bombed the foreign ministry building killing a dozen or more people.
Moreover, more recently when the Non-Aligned Movement indicated its willingness to table a resolution condemning America's illegal aggression against Iraq, the US sent letters and other messages to several key countries indicating that such a resolution would be viewed as an unfriendly act against the US. Under fear of threats and coercion it is little wonder that other governments do not defend the most vulnerable of America's victims.
Under international law it is the Afghans and Iraqis fighting American forces in their respectively occupied countries who enjoy the backing of legality -- or at least its most basic protections. As citizens of a sovereign country they should not be attacked in violation of international law. As members of the military of the de facto governments of these countries, fighting in defence of their respective countries against illegal invaders, they should be respected as prisoners of war if captured. And, as human beings, they should be protected against violations of their most basic human rights. Having seen that they cannot be so protected by the domestic courts of the US or other countries, including their own, at least international human rights tribunals should provide some degree of recourse, however nominal this may be.
This has not been the case. Instead, the Secretariat of the Inter-American Commission on Human Rights has refused to accept cases brought challenging the legality of America's actions in Afghanistan and Iraq. These cases were filed with the Commission making use of the plenary jurisdiction that it has often exercised over the US. In fact, the Commission did take a case on behalf of some of the prisoners in Guantanamo Bay -- for precautionary measures -- but refused to take cases claiming that the American government violated the human right to life of the Afghans and Iraqis by illegally attacking their countries.
In the case brought on behalf of the Afghans, the Inter-American Commission's Secretariat argued that domestic remedies had not been exhausted. It ignored the fact, argued at length in the petition, that no adequate and effective domestic remedies existed because the US Supreme Court, as indicated above, had repeatedly held that foreigners outside the US had no legal remedies for violations of their human rights by the American government.
Apparently, the Secretariat believed that a second pending petition to the US Supreme Court would be successful even though it concerned only "friendly enemies", or prisoners from so-called friendly countries. Afghans were excluded apparently because the petitioners in this case, a prominent human rights group, believed that the law was clear concerning these other foreigners against whom the US had waged an illegal war.
In the case concerning the Iraqis, the Inter-American Commission's Secretariat argued that no protected rights were claimed. This was apparently based on the belief that the US could not be held accountable under inter-American human rights standards for its violations of law abroad. If such a belief is true, it means that while the US cannot mistreat Americans or Argentineans or Mexicans, it can with impunity treat Iraqis or Afghans, or any distant people, as inhumanely as it likes, without fear of censure by the primary human rights body of the Americas. It is indeed unusual that a human rights body declares one people less deserving of human rights than others, but this is just what the Washington, DC-based Inter-American Commission on Human Rights appears to be saying.
Such a message will undoubtedly have resounding effects throughout Africa and the Middle East, where American aggression and exploitation have a more oppressive intensity than anywhere in the Americas. One might wonder if such a holding by the Commission will not encourage the US to more readily, illegally and brutally attack peoples in far away places. When the President of the Inter-American Commission on Human Rights, Mr José Zalaquette, was formally notified of the situation and asked to bring it to the attention of the seven members of the Commission he refused to discuss it. He claimed he was too busy to be concerned with the lives of more than 50 million Afghans and Iraqis. But perhaps more damaging, he sent a message to these people and the other three-and-a-half billion subjected to an existence in poverty and under oppression, that even international human rights bodies will not object, to any useful extent, to the US's illegal activities.
With the last -- and very weak at that -- forum of redress and protection of your human rights closed to you, what would you do if you were an Iraqi or an Afghan? Would you just conform and accept an illegal situation, or would you fight with your life for justice and your freedom?
As the renowned social philosopher Jürgen Habermas argued in the Frankfurter Allgemeine Zeitung on 17 April, treating situations that the world knows are illegal as legal may be the best way to destroy society as we know it. Instead, a rational-thinking person reacts to an illegal situation by condemning it and refusing to confirm its legitimacy.
While Habermas is speaking for 90 per cent of the thinking world, regrettably the likes of Arnold Schwarzenegger speak for most Americans. This being the case, one must seriously ask if there is a way that vulnerable, impoverished people can make legitimate claims and demands through any legal forum that will provide them justice. I'm not advocating violence, but if we have closed the last forums of redress to these people, to what other means do they have legitimate access?
If human rights tribunals, judges, and politicians of the international community are willing to turn their backs to the poor and the oppressed, why don't these people have the right to resort to revolutionary resistance? I'm asking this as a question, Mr Bush, Mr Rehnquist, Mr Zalaquette, on behalf of those whom you have denied access to justice.
* The writer is an international human rights lawyer who has lived or worked in more than fifty countries. His latest book is International Human Rights Law.
