When the Most Powerful Nation Transgresses

During the Bush-era “war on terror,” detainees in Guantanamo Bay, Abu Ghraib, and numerous other detention sites were tortured through such techniques as beating, stress positions, sleep deprivation, waterboarding, sexual assault, subjection to extreme heat or extreme cold, and confinement in small coffin-like boxes.

During the Obama administration, deadly drone strikes targeted men and teenage boys merely suspected of crimes, killing numerous civilians—and even allegedly engaging in double-tap strikes of first responders. Most recently, the Trump administration has established a complex of detention camps on the U.S. border that include conditions far worse than the United States is required under the Geneva Conventions to provide to enemy prisoners. The inhumane crowding has been likened to “concentration camps”; Adam Serwer at The Atlantic refers to this as a “historic crime.” Some scholars argue the conditions of internment meet the international definition of crimes against humanity contained in the Rome Statute of the International Criminal Court.

These are crimes the U.S. State Department would (and does) decry when they are engaged in by countries like Syria, Serbia, or Sudan—places where America has supported war crimes tribunals for the perpetrators. What can and should be done, and by whom, to see that justice is served when agents of the U.S. government themselves commit war crimes or crimes against humanity? It may seem that the options are limited, given that the United States is a superpower easily able to withstand criticisms, avoid accountability, and place its actions beyond the bounds of the law by reinterpreting the law itself.

Still, the history of these three recent presidencies shows there are several pathways to justice—but whether and how they can succeed depends on the type of justice, the political will of multiple actors, and most importantly on whether ordinary Americans can resist U.S. government efforts to rewrite international law and morality. The good news is that they have and they can. Americans can build on these successes and learn from missed opportunities.

Types of Justice

There are several ways to think about the question of justice in the face of war crimes and crimes against humanity. When human rights activists think about responding to these kinds of crimes, the first step is usually ameliorative justice. Ameliorative justice involves efforts to assist victims and put crimes to a stop—which, from the perspective of victims, is much better than post-hoc punishment. Non-coercive efforts to stop war crimes and crimes against humanity include protests, international outrage, humanitarian assistance and diplomacy, and judicial redress. In some situations, coercive efforts to stop war crimes and crimes against humanity have included military intervention (in places like Libya or Kosovo) abroad.

Restorative justice seeks to repair the wounds not only to individuals but society in the aftermath of crimes that have taken place. Reparations are an example of restorative justice, as are truth commissions where the emphasis is not so much on punishing perpetrators but on creating healing conversations and acknowledging the wrong that has been done in order to move forward with forgiveness. But other forms of restorative justice matter too, like efforts to educate the next generation about what happened and ensure it never does again.

Finally, punitive justice involves trials and punishments for at least some perpetrators. Under the Geneva Conventions, it is the responsibility of states themselves to try their war criminals, but this makes it hard to try political leaders who order crimes against humanity until after a political transition. In many cases, however, those very leaders have been brought to justice after they left power. Some, like Bosnian Serb leaders Ratko Mladic and Radovan Karadzic have been indicted, tried, and convicted in UN-created international tribunals. Some, like Saddam Hussein, have faced trial and execution (or, like Muhammar Ghaddafi, simply execution) by occupying powers or their own people after an overthrow.

In some cases, like Augusto Pinochet, dictators have faced accountability through the universal jurisdiction process, arrested in and/or extradited to other states when traveling abroad to face trial for their crimes. Yet Pinochet eventually evaded trial for medical reasons, and these efforts are often selective and idiosyncratic. Seeking to systematize these ad hoc approaches and contribute to a rule-based approach to punitive justice, the international community established an International Criminal Court to try the worst offenders of the worst crimes in cases where no other justice was possible. Even so, the patchwork of treaty obligations leaves holes in the net that protect criminals. Omar Bashir, the long-time dictator of Sudan and architect of the Darfur genocide, has been deposed and indicted by the International Criminal Court, but actually arresting him would require the cooperation of African states where he travels—and many are willing to instead give him sanctuary.

In all of these efforts, a key question is political power. Often, international justice for war crimes is meted out most on the losers in any conflict, and humanitarian interventions have occurred only in places where the intervenee is weak and the intervenor expects little pushback. Thus NATO entered Libya, attempting to protect civilians, but allowed Syria to collapse for fear of drawing Russia into a regional war. When it comes to ameliorative justice, the ability to shame, cajole, or sue a country into following the law also depends a great deal on what sort of sticks and carrots can be used to modify behavior. So what happens when the country committing the crimes against humanity is the most powerful in the world?

Obstacles to Justice

The United States wields three forms of power that pose obstacles to the enactment of justice for crimes against humanity in America. The most obvious and least remarkable form is coercive power—the ability to compel others through threat of force or withdrawal of aid. The United States has the most powerful military and spends more on defense than any nation. It uses its wealth to induce less powerful countries to do its bidding. It is inconceivable that outsiders would intervene in the United States to close the concentration camps on the southern border the way that NATO intervened in Bosnia. Thus, U.S. brute power, both in guns and treasure, forecloses certain forms of ameliorative justice.

The United States has also skillfully used its institutional power to render its leaders and military immune from punitive justice abroad. The United States has a veto on the UN Security Council and so could never be the target of a UN-backed ad-hoc tribunal. Nor has the United States signed the Rome Statute of the International Criminal Court, so that technically its leaders are not under the court’s jurisdiction. Although there are cases in which a U.S. soldier or CIA agent might be indicted by the court, the United States has gone to extraordinary lengths institutionally to ensure that would never happen. These include extracting bilateral immunity agreements with numerous countries to ensure they would never turn an American over to the court and even passing a Congressional Act that would legitimize an American invasion of the Netherlands should an American find herself in the dock at the ICC. It would be reasonable to wonder if there were any mechanism at all by which American leaders or even their foot soldiers could be held accountable for crimes against humanity.

Beyond this, America is skilled at exercising a different form of power: what political scientists Bud Duvall and Michael Barnett refer to as “structural” or “productive” power. This form of power does not operate, like institutional or coercive power, in interactions with others, but rather in shifting the meanings associated with concepts. The Bush Administration, for example, not only permitted and endorsed torture, but tried to redefine the concept of “torture” to somehow legitimate its own acts, attempting to reconstitute acts like waterboarding, stress positions, and sexual degradation as “enhanced interrogation.”

The Obama Administration, for its part, continued and accelerated the Bush-era practice of extrajudicial execution of terror suspects with unmanned aerial vehicles, including sex-selective massacres of teenage boys simply for being military-age, male, and suspicious. But Obama and his legal advisors did more than target terror suspects for execution without due process in areas where the United States was not at war. They constructed elaborate legal concepts to try to justify their acts, pretending war law applied where human rights experts said it did not, and framing these acts as “targeted killings,” rather than “extrajudicial executions” as the UN saw them.

The United States under Trump acts similarly in attempting to reinterpret the Refugee Convention, not only flouting the principle of non-refoulement but articulating new obligations of transit countries (often very dangerous places themselves) to take refugees. Meanwhile President Trump has reconstituted asylum-seekers as “illegals”—even though the human right to cross a border seeking asylum is protected under international law, making countries like the United States who deny this right the real “illegals.”

Evidence for Hope

Despite these tactics used by the U.S. government historically to avoid accountability for its war crimes and crimes against humanity, the truth is that history has continued to bend in the direction of justice, and even the most powerful nation on earth has not been able to commit such crimes with impunity, much less convince the international community that its crimes don’t exist. The Bush administration both tortured and attempted to redefine torture, but this stance was never accepted—not by the U.S. Supreme Court, the European Union, nor a plurality of average Americans. While many small countries did sign bilateral immunity agreements under pressure from the United States, many others refused to do so, accepting the resulting loss of U.S. aid.

While it is not likely that any nation will conduct a humanitarian intervention to close Trump’s concentration camps, other forms of ameliorative justice are everywhere and are making a difference. Hundreds of thousands of Americans took to the streets in one weekend this summer to protest the concentration camps; numerous smaller actions take place regularly. Advocacy groups have consistently used the courts to roll back Trump’s worst excesses—and have made gains for detainees. The Democratic wing of Congress has monitored the camps, held hearings, and made human rights of asylum-seekers a key campaign issue. America is not Nazi Germany, where the majority of ordinary Germans shrugged, cheered, or looked the other way.

While no American leader is likely to end up before the International Criminal Court, this is actually as it should be, because punitive justice for perpetrators is possible in America. The Constitution bans inhumane treatment, and cruel and unusual punishment, and it requires due process for all persons on U.S. soil, not just citizens. It also requires the United States to follow its treaties. The War Crimes Act bars U.S. soldiers from committing acts that would violate Common Article 3 of the Geneva Conventions. The Torture Act bars all nationals of the United States from committing crimes that would fall under the UN definition of torture, which includes psychological harm. Courts in the United States regularly take up these issues. Both U.S. soldiers and other U.S. agents could be prosecuted by a future administration under these laws and under the Nuremberg Principles if they obey unlawful orders, such as to arbitrarily detain civilians in inhumane conditions or psychologically abuse children.

Even if the United States never holds such trials, other countries could, if any individuals involved travel there. Under the principle of universal jurisdiction, any country may arrest and try an individual for crimes such as these. In fact, several countries initiated indictments for Bush-era officials—and Malaysia has already found them guilty in absentia. This itself is a form of punitive international justice, as it limits the range of countries to which such individuals may safely travel.

The prospects for justice in the United States should not be overstated, as America has missed important opportunities as well. When Obama came to office, there were calls for trials by Human Rights Watch and other legal-based advocacy groups. But the new Obama administration made a conscious choice not to prosecute Bush-era officials who had developed a policy of torturing detainees. By carrying on Bush-era policies like drone strikes, and continuing the centralization of executive power under the guise of the war on terrorism, Obama set the stage for Trump’s misuse of presidential authority rather than analyzing and reversing the conditions that had led Bush and Cheney to operate with seeming impunity.

In addition, America as a nation has often missed the opportunity to engage in genuine restorative justice in the wake of its darkest moments. To be sure, we have sometimes gotten it right, and the United States has a history of making amends to those we have harmed in combat. For example, during the occupations of both Afghanistan and Iraq, the U.S. government initiated condolence payment programs to make amends to civilians they had harmed in these wars. America could build on this mentality to provide restitution for harmed refugees, torture victims, and those who have lost families in drone strikes.

But instead there has been very little in the way of public restitution for such victims. When Pakistani drone strike victims traveled to the U.S. Congress to tell their stories, very few representatives and senators showed up. Families of those suffering in Guantanamo or Abu Ghraib received few apologies, and less help. When the Chair of the Senate Judiciary Committee, Patrick Leahy, announced in 2009 that the United States should create a Truth and Reconciliation Commission to address Bush-era atrocities, the idea gained little support. And what restorative justice could even mean for children whose brains are being irreparably mal-formed through early childhood trauma and separation, and whose relationships with their families will never be the same, is hard to grasp.

But even in situations far darker than present-day America, restorative justice is not only possible but has been essential in turning back the tide of racism, hatred, and fear that often lies beneath serious crimes against civilian populations. In Germany after the Holocaust, political elites took specific steps to correct for the psychological amnesia that can occur after atrocities. They instituted laws forbidding Holocaust denial; they established museums and memorials; they ensured that every German high school student had toured a concentration camp; and Germany developed a policy of reconciliation and trust-building with the international community as well. Similarly, in South Africa, a Truth and Reconciliation Commission was established to help the country heal from the legacy of apartheid. As documented by Desmond Tutu, the effect of this institution has been to reconstitute South African political culture around a shared narrative of how hard it was on all sides, and how better a racially pluralistic society could be.

The kinds of things that Germany and South Africa have done right are things that other countries like Japan and America have only occasionally tried in the wake of war crimes or crimes against humanity. The U.S. Senate Intelligence Committee’s Report on CIA Torture in 2014 was a step, but these types of efforts reach only the interested few. They are not the same as a public truth commission, broadcast on television networks, to reaffirm international human rights principles and allow victims to tell their stories and perpetrators to acknowledge their wrongs and seek forgiveness in exchange for amnesty. Truth commissions have been used occasionally in the United States—like the 2004 Greensboro North Carolina Commission focused on racial violence—but overall they have not been used widely nor at the national level. This arguably allows societies to maintain narratives of victimhood and grievance that can fuel future waves of identity-based violence, rather than finding shared narratives about the past, as has happened in South Africa and Germany.

If Trump is dislodged in 2020, an incoming Democratic challenger could consider numerous options for justice. And research shows these types of justice are often best served in combination. That person should not only close the camps, reinstate a humane asylum policy for vulnerable families, and provide ameliorative justice for the victims. They should also not shy away from conducting trials of the worst offenders, including high-level U.S. government actors and even Trump himself for crimes against humanity. But for low-level perpetrators who felt they were only doing their jobs, another option is a truth and reconciliation commission to begin the process of nationwide acknowledgement and healing. Through this combination of strategies, “never again” can become, if not a reality on US soil, then a likelier probability.