UCLA Today Online, October 7, 2008

Woe to the politician who would have said, 'Not so fast ... [Osama bin Laden] should be indicted ... we should be arresting him and bringing him to trial.'

UCLA Today Online

By Alison Hewitt

COULD THE United States be getting in the way of international justice?

That was one of the underlying questions of a presentation on Oct. 3 by retired U.S. Gen. Wesley Clark and Theodor Meron, a judge on the International Criminal Tribunal for the former Yugoslavia. A standing-room-only crowd gathered at UCLA's School of Law for the lecture, which was sponsored by the Burkle Center for International Relations, the law school and others.

Clark, a current fellow at the UCLA Burkle Center for International Relations, spoke bluntly: "The U.S. has emerged as a major speed bump" to international courts, he said. "We rejected the [International Criminal Court], not that there weren't valid concerns, but on balance I regret that we rejected the ICC."

Meron serves on the court that tries accused war criminals like Slobodan Milosevic, many of whom are charged with committing genocide during the wars that made names like Kosovo and Serbia familiar to American ears.

"Does international justice work?" Meron asked. "Yes. Or at worst — yes, for the most part."

But international justice faces many obstacles, he acknowledged, ranging from the slow pace of its multi-year trials to the small number of suspects tried. International criminal courts also lack jurisdiction over 70 percent of the world, including the U.S., Russia, China, India and the Middle East, Meron added.

That means that the ICC has no guarantee of cooperation in bringing indicted suspects to trial, and for citizens of many countries, the court cannot even issue indictments. The U.S. does a "reasonable job" of prosecuting rank-and-file soldiers who commit crimes, he said, but in countries like Russia and Indonesia, the crimes go unpunished.

"Even in the U.S., I am not confident of prosecution," Meron added, citing the use of torture on prisoners in Guantanamo. He noted that some countries have enacted laws prohibiting the same crimes the ICC has jurisdiction over, but added ruefully that it was not always a sign of support for the ICC. Instead, some countries use it to wrest jurisdiction away from the international court, by claiming that the crimes can be tried domestically.

Clark, who served as supreme allied commander of NATO, used Osama Bin Laden as an example of the fundamental improbability of the U.S. submitting to the authority of the ICC.

"If you were to really do this the right way, you'd say, 'Well look, we need to follow the rules. The international criminal code, we believe in it, and we're going to bring these people in for trial,'" Clark said. "But our president said, 'Wanted, dead or alive, Osama Bin Laden.' He did not say, 'Go out there and arrest him and bring him in, I want to make sure we get a fair trial.'

"He should have said that, but he didn't. And public opinion roared its approval," Clark continued. "Woe to the politician who would have said, 'Not so fast ... he should be indicted ... we should be arresting him and bringing him to trial.' [The public] would have said, 'We can't listen to these people talk for hours, with the trials going on for years. That's not justice, and we've got to protect America.'"

The ICC asks too much, Clark said, and so, the U.S. undermines international law, Clark said.

Former UCLA Chancellor and international security expert Albert Carnesale, who attended the talk, said there's hope that the U.S. and ICC will find a way to work more cooperatively.

"Here were two really thoughtful presentations on the importance of that [international court] regime and how it might benefit us to become a part of it," Carnesale noted. "There's always hope, but it will depend on the next [president's] administration, and it will also depend in part on the willingness of that [international] regime to change."

Hear more from retired Gen. Wesley Clark in an interview given just before the international justice lecture. He discusses whether an Iraq-style surge would work in Afghanistan, how best to fight al-Qaeda in the Afghanistan-Pakistan border region and the use of diplomacy in dealing with Iran.