We get letters

Are war criminals exempt from trial except by their own governments?

A smarter-than-average Redblogger thinks he’s scored a “gotcha.” Below is the entire dialogue (so far); you can judge for youself. I haven’t asked his permission to publish, so I’m going to call him “Sam” because Sam is not his name.

UPDATE: “Sam” is Dan Simon of I Could Be Wrong; he rejects the labels “Redblogger” and “conserative.” See below.

“Sam” refers to two RBC posts:

* One by me suggesting that the Ahmadinejad speech at Columbia, before which he was dumped on by the President of Columbia and during which he was laughed at by the crowd, actually worked out pretty well, illustrating (though of course not proving) the Jeffersonian claim that open debate is good for the good guys.

* One by James Wimberley endorsing the attempt to have Don Rumsfeld arrested and tried as a war criminal during his visit to France.

“Sam” to MK and JW:

Folks:

I couldn’t help noticing the interesting contrast between the two posts. Perhaps you two could hold a little debate on how to handle visits by notorious foreign violators of international law (you know &#8212 people like Donald Rumsfeld). Arrest them? Invite them to give a distinguished lecture? It’s such a dilemma…

MK to “Sam”:

Hmmmm….that’s a hard one … lemme see … don’t rush me!

James can speak for himself, but I didn’t see him arguing that Rumsfeld should be silenced, as opposed to being subject to legal process, and I certainly wouldn’t object to having Ahmadinejad face a war-crimes trial. As to arresting Ahmadinejad, last time I checked heads of state visting the UN had diplomatic immunity. And as I recall, we have rather a strong objection to the violation of diplomatic immunity, even when (as in 1979) some of the diplomats are in fact spies.

So it seems to me that RBC has a single standard: diplomatic immunity should be respected, even war criminals should be heard as long as others are given a chance to contradict them, and war criminals should be arrested, tried, and punished.

How many standards do you have, “Sam”?

“Sam” to MK:

Mark: Do you see no contradiction between, “even war criminals should be heard as long as others are given a chance to contradict them,” and “war criminals should be arrested, tried, and punished”? It’s hard, after all, to be heard from a prison cell, let alone a coffin. And surely there’s a difference between “should be heard” in the sense of not censoring them, and “should be heard” in the sense of inviting them to prestigious colleges to give distinguished lectures–is there not?

(That’s especially true of people whose presence is possible only by virtue of their diplomatic immunity. After all, they aren’t exactly lone dissenting voices for whom any forum might be their only available platform. Rather, they’re representatives of a sovereign government with ample means at its disposal with which to propagate its official position. Denying them a lectern at Columbia thus hardly condemns their viewpoint to silence.)

As for my position, I personally consider universal jurisdiction a recipe for disaster, and therefore oppose the prosecution of war crimes alleged to have occurred within another country’s sovereign territory. The alleged perpetrators can, of course, be denied entry, or they can be extradited to the country where their crime is alleged to have been committed, if the necessary treaty exists. But if the government of that country doesn’t intend to prosecute them, then arresting and trying them is a blatant violation of that country’s sovereignty–roughly equivalent to prosecuting someone with diplomatic immunity, in fact. (Of course, if the government in question is believed complicit in the war crimes, then acts of aggression against that country’s sovereignty might well be justified–including, for instance, invading, overthrowing the guilty government, and setting up a war crimes tribunal to try the perpetrators. But that such pursuit of foreign war criminals is in fact an aggressive act, should in any case be clearly acknowledged.)

But while I understand the US granting and respecting Ahmadinejad’s diplomatic immunity (a regrettable consequence of America’s regrettable continued participation in the obscene farce that is the UN), I think it was outrageous for Columbia University to treat him like an esteemed political opponent rather than a criminal monster, by honoring him with an explicit invitation to speak to its students. As for Donald Rumsfeld, I don’t consider him a war criminal, but if I did, I would think it proper for foreign countries to refuse him entry, rather than to arrest him and try him.

And if a country were to refuse him entry, or arrest him–say, preventing him from giving a lecture to a friendly audience in another country–I know you’d pipe up vigorously in defense of his right to “be heard”. Right?

“Sam”

MK to “Sam”

“Sam”:

Wrong. Of course. Not even close.

I didn’t assert that Ahmadinejad had “a right to be heard.” I asserted that hearing him (allowing him to make a fool of himself, with the president of Columbia there pointing out what an a**hole he is) was a smart thing to do. I wouldn’t have criticized Columbia for not inviting him, or disinviting him. After he leaves office, if he’s incautious enough to travel to a country willing to arrest and try him, more power to them, say I. Just like Rumsfeld.

As to the claim that Rumsfeld is not a war criminal:

        Torture is a war crime.

        Waterboarding is torture.

        Rumsfeld ordered waterboarding.

        Therefore, Rumsfeld is a war criminal. Q.E.D.

Is there some part of that argument you’d like me to repeat more slowly?

Mark

Naturally, if “Sam” wants to respond, I’ll post in full. As a warrior who wasn’t a war criminal (i.e., the opposite of Rumsfeld, Cheney, and Bush) once said, “I’m prepared to fight it out along these lines if it takes all summer.” And if he wants his correct name used, I’m happy to restore it.

Note, if you will, the pure state-worship characteristic of modern “conservatism.” States have rights (“sovereignty,” just as if it were 1648) that are automatically superior to the rights of the people living in them, or people living elsewhere. On this logic, if the Burmese generals want to murder Burmese monks, and if we decide not to invade Burma to fix it &#8212 killing God knows how many Burmese in the process &#8212 then it would be wrong (not just imprudent, but wrong) to punish the Burmese generals without invading their country. If Russians slaughter Chechens, the Chechens just have to grin and bear it.

Somehow I doubt the authors of the Declaration of Independence would agree.

Update As promised, albeit belatedly, here’s Dan Simon’s response:

1) By all means, feel free to post my name (and my blog URL, if you like). I stand by my emailed comments.

2) While I’m flattered by the “smarter-than-average” label, I deeply resent being called a “Redblogger”. I’m vigorously non-partisan and non-ideological, and feel not the slightest obligation either to agree with American Republicans or to disagree with American Democrats. In fact, I’m not even American, and rather dislike the color red in general. As far as I’m concerned, the blinders of ideology and partisanship are the most pernicious influences on what might otherwise be intelligent, useful public political discussion in the blogosphere.

3) Perhaps it’s because I’m not a conservative, but I harbor none of the “pure state-worship characteristic of modern ‘conservatism'” you ascribe to me. My opposition to “universal jurisdiction” is not that it might be used to violate the sovereignty of Burma by incarcerating members of the Burmese junta. Indeed, as I pointed out, I have no objection whatsoever to violating the sovereignty of brutal tyrannies like Burma (not to mention a certain Middle Eastern former regime) in an effort to remove their dictators from power.

But we both know there’s absolutely zero chance of “universal jurisdiction” ever being used for that purpose. Strongmen in power have tools–diplomatic immunity, which even you embrace, is an obvious one–to protect them from arrest. And if they ever lose power, they know they have much more to fear from their replacements than from some faraway court.

Rather, “universal jurisdiction” will only ever be used to pursue partisan political vendettas against unpopular, powerless foreigners whose only real crimes are having a local constituency that hates them, having no local constituency with any reason to defend them, and coming from a foreign country (most likely a human rights-conscious democracy) that’s too weak, divided or pusilanimous to threaten retaliation in kind.

It’s bad enough that the law is often used ruthlessly and unscrupulously to attack partisan political opponents (viz., Bill Clinton) within otherwise-civilized democratic countries. At least in those cases, the other side will usually rise to the defense of a defensible target. Against foreigners, however, it’s almost always open season, unless the country in question is willing to act equally aggressively in defense of its targeted citizen. And the democracies of the world have enough trouble maintaining a united front against tyranny in the face of internecine partisan conflict, without it spilling across national lines in this form.

4) I’m far from an expert on Donald Rumsfeld, but as far as I know,

i) Torture is only a war crime when performed on prisoners of war.

ii) Whether waterboarding is torture is as fuzzy a question as the definition of torture itself.

iii) It has never been established that Rumsfeld ordered the waterboarding of anyone (although again, I haven’t been following the issue very closely, and am willing to be proven mistaken on this question of fact).

Otherwise, though, your logic is impeccable.

Two notes on Dan’s last point:

1. The suggestion that soldiers who torture civilians rather than POW’s aren’t guilty of war crimes has no basis, so far as I know, in either logic or law.

2. There was no ambiguity about whether simulated drowning (waterboarding) constituted torture when the Spanish Inquisition did it. There was no ambiguity about whether simulated drowning constituted torture when the KGB did it. There was no ambiguity about whether simulated drowning constituted torture when the North Vietnamese did it. There was no ambiguity about whether simluated drowning constituted torture when we tried Japanese officers as war criminals for using it. I defy Dan, or anyone else, to come up with a single claim by an American official before 9/11 that waterboarding was anything other than torture.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com