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October 1, 2001

Rise Above It: Fight Terror Legally

THE DRUMBEATS OF war resound all around our country. President Bush says, “We are at war,” and has deployed heavy bombers to the Persian Gulf. The government vows to wage a protracted military campaign and Congress has appropriated $40 billion to aid the recovery and war efforts.

We have never seen more heinous acts of terrorism than the events of Sept. 11. Many point to instances of U.S.-supported terrorism in other countries such as Indonesia, Chile, Nicaragua, El Salvador and Guatemala, and remind us that the CIA trained Osama bin Laden in terrorist tactics to fight the Russians in Afghanistan. But no just cause can excuse the murder of innocent civilians, wherever it may occur.

The people who conspired to hijack those airplanes and kill thousands of people are guilty of crimes against humanity. They must be identified and brought to justice in accordance with the law. But retaliation by bombing other countries is not the answer and can only lead to the deaths of more innocent people.

Whatever action we decide to take must conform to the rule of law, which underpins our democracy. After the horrors of World War II, nearly all the nations of the world determined never to have another world war by founding the United Nations. If the evidence supports the suspicion that bin Laden was responsible for these attacks, we must insist that the U.S. take the steps agreed to in the United Nations Charter to immediately sue Afghanistan in the World Court for harboring him.
The Unites States should ask the court to order Afghanistan to surrender bin Laden for trial immediately. This is what the United States did when it sued Iran in the World Court; when the court ordered the United States to stop mining the harbors of Nicaragua, the United States complied.

The U.N. Security Council met on Sept. 12 and adopted Resolution 1368, calling on “all States to work together urgently to bring to justice the perpetrators, organizers and sponsors” of the attack and stating that they “will be held accountable.” The Security Council called “on the international community to redouble its efforts” against terrorism, and expressed its “readiness to take all necessary steps to respond to the terrorist attacks of 11 September 2001– in accordance with its responsibilities under the Charter–“

This means that the United States must not take its own military action in violation of the U.N. Charter, which mandates that members settle their international disputes by peaceful means and refrain from the threat or use of force, unless authorized by the Security Council. The United States must decide, with all other 14 members of the Security Council, what steps should be taken toward the goal of peace, not revenge and further war.

Further, the U.S. military must be forbidden from committing acts of war against any nation or individual. Only Congress has the power to declare war against another nation. Although it has authorized the use of force, Congress stopped short of declaring war under the War Powers Act. No nation has attacked the United States.

It is also imperative that we follow the rule of law at home and refrain from sacrificing our civil liberties in our zest to catch those responsible. Racial profiling against people of Middle Eastern descent and Muslims must be assiduously avoided, and judges should be as vigilant as ever in issuing wiretap orders and search warrants.

We must also guard against the xenophobia that led President Franklin D. Roosevelt to issue Executive Order 9066 in 1942, which authorized the internment of more than 70,000 American citizens and 50,000 resident aliens for being of Japanese ancestry.

Finally, as a sign that the United States has learned something from the bombing of a civilian city, the U.S. should immediately stop its almost daily bombardment of Iraq, which has not been authorized by the Security Council.

It is understandable that in the midst of our anguish and grief, calls for vengeance will abound. But our country was built on a firm foundation of the rule of law and we signed the U.N. Charter because we are peace-loving people. Never will our humanity be tested more than now.

September 5, 2001

U.S. Boycott of the World Race Conference Signals Denial of Racism at Home

The United States government’s walkout at the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance in South Africa belies our commitment to eradicating racism in this country. Although framed as opposition to resolutions condemning Israel for its treatment of the Palestinians, the Bush Administration is really worried about international attention focusing on inequality here in the United States.

When the U.S. delegation left the conference, the South African government stated, “It will be unfortunate if a perception were to develop that the U.S.A.’s withdrawal from the conference is merely a red herring demonstrating an unwillingness to confront the real issues posed by racism in the U.S.A. and globally.”

Our country is a party to the International Convention on the Elimination of All Forms of Racial Discrimination. That treaty requires us to condemn racial discrimination and to pursue by all appropriate means and without delay a policy to eliminate racial discrimination. It also mandates that we guarantee to everyone without distinction as to race, color, or national or ethnic origin, the rights to public health, medical care, social security, social services and the right to education and training.

Yet 139 years after the Emancipation Proclamation, vast disparities with respect to race pervade every aspect of American life. Non-English-speaking minorities are discriminated against in the educational system and widespread segregation still exists in public elementary and secondary schools. Extensive job discrimination endures in both the public and private labor markets. There are discrepancies in the incomes of white and minority high school graduates.

Racial profiling from the initial police stop to the charging process and trial through the sentencing procedure has been widely documented. Mandatory sentences of life imprisonment are imposed disproportionately on minority defendants. Non-whites are much more likely than whites to be charged with and sentenced to death for substantially similar crimes.

Police brutality against minorities came out of the closet with the videotaped beating of Rodney King in Los Angeles, and the execution of Amadou Diallo and the sodomizing of Abner Louima in New York. The Rampart Scandal in the Los Angeles Police Department proves that the problem encompasses more than just a few bad apples.

Environmental racism has resulted in the location of toxic waste dumps in communities of color. Hate crimes against racial minorities persist. Immigrants, also frequent victims of hate crimes, are often abused by the U.S. Immigration and Naturalization Service.

The United States boycotted prior United Nations conferences on racism in 1978 and 1983, also ostensibly because of resolutions equating Zionism with racism. Siding with Israel isn’t based on the U.S. government’s great love for the Jews, or concern for them as an oppressed people. It is Israel’s strategic location in the Middle East, near the oil-rich Persian Gulf, that motivates the U.S. to support Israel, while disregarding repression in other global hotspots. The United States ignored the genocide in Rwanda, Turkey’s scorched earth campaign against the Kurds, and the ethnic cleansing of 200,000 Serbs from the Krajina reigon by the Croatian army in 1995.

U.S.-led NATO bombed the people of Yugoslavia for 78 days and then moved in to occupy Kosovo and Macedonia, not to stop ethnic cleansing, but to maintain American hegemony over European markets and transport routes for Caspian Sea oil. The United States will not, however, defy Israel by asking the United Nations to send observers or peacekeepers into the West Bank and Gaza, to stop the horrific bloodshed there.

Adjoa Aiyetoro, an attorney with the Women’s International League for Peace and Freedom in Washington, said of the U.S. decision to pull out of the conference: “We definitely believe it is a smoke screen . . . the United States is showing one more time [that] all this talk about freedom and liberty is a lie.” She added, “They need to stop hiding behind and supporting Israel when the United States isn’t even supporting its own people.”

The other issue that terrified the Bush Administration about the 2001 conference was a demand that the U.S. pay reparations to African-Americans for the damage done to them by slavery. Rep. John Conyers Jr. (D.-Mich.) reported that other delegates from the Congressional Black Caucus alleged the U.S. was using the Middle East issue as a smoke screen to avoid discussion of reparations.

Bush had decided not to send Secretary of State Colin Powell to South Africa for the conference, replacing him instead with a “mid-level” delegation, which staged the walkout. The Reverend Jesse Jackson aptly characterized this mid-level delegation as a “high-level insult.”

The United States government was insulted when it was kicked off the United Nations Commission on Human Rights earlier this year. The self-anointed global human rights policeman should attend to the inequality and injustice at home. U.N. Secretary General Kofi Annan told the delegates in South Africa, “Your anger can be valuable if you channel this into a worldwide racism struggle where all of your agendas converge.” By its high-level boycott of the conference, the United States government is pursuing its own agenda of denial of the institutional racism that persists in this country.

August 17, 2001

Balkans Pacification and Protecting an Oil Pipeline

George W. Bush’s recent announcement that the United States is committed to stay in the Balkans comes as no surprise. Despite his rhetoric about helping the people there, it’s really about the transportation of massive oil resources from the Caspian Sea through the Balkans, and maintaining U.S. hegemony in the region.

Although NATO ostensibly bombed Yugoslavia for 78 days in the spring of 1999 to stop ethnic cleansing, the bombing was actually part of a strategy of containment, to keep the region safe for the Trans-Balkan oil pipeline that will run from the Black Sea port of Burgas to the Adriatic at Vlore, and pass through Bulgaria, Macedonia and Albania. The pipeline is slated to carry 750,000 barrels a day, worth about $600 million a month at current prices.

Cooperation of the Albanians with the pipeline project was likely contingent on the United States helping them wrest control of Kosovo from the Serbs. The United States seeks to contain Macedonia as well, supporting both sides in the conflagration there. Military Professional Resources International, a mercenary company on contract to the Pentagon, has trained both the Kosovo Liberation Army and the Macedonian army. MPRI also supplied and trained the Croatian army in 1994 and 1995 before the Croatians cleansed more than 100,000 Serbs from the Krajina region.

The bombing was not aimed at ethnic cleansing. It was part of U.S.-run NATO’s eastward expansion as a counterweight to Russia, which wants the Caspian oil pipeline to run through its territory. NATO, created during the Cold War to protect Western Europe from the Soviets, should have disbanded after the breakup of the Soviet Union.

But a 1992 draft of the Pentagon’s Defense Planning Guidance advocated continued U.S. leadership in NATO by “discouraging the advanced industrialized nations from challenging our leadership or even aspiring to a larger global or regional role.” Secretary of State Colin Powell recently said, if we decide to expand NATO, “we should not fear that Russia will object; we will do it because it is in our interest.”

Although Bush has tried to downplay the tension between the United States and Russia by warming up to Putin and looking “into his soul,” this is nothing more than posturing to reassure the countries of Europe that they shouldn’t fear Russia’s reaction were they to support Bush’s missile defense plan.

The United States has invested too much in the Balkans to pull out. After the NATO bombing campaign, the United States spent $36.6 million to build Camp Bondsteel in southern Kosovo, the scene of Bush’s recent tightly controlled four-hour visit. The largest American foreign military base constructed since Vietnam, Bondsteel was built by the Brown & Root Division of Halliburton, the world’s biggest oil services corporation, which was run by Richard Cheney before he was tapped for vice president.

America’s commitment to remain in the Balkans can be measured “in years,” according to a recent characterization of the White House’s position by The New York Times.

NATO’s bombs, never sanctioned by the United Nations, were not “humanitarian intervention.” Even the Marine Corps Gazette concluded after the bombing that the “resulting deaths of thousands of Serbian soldiers, civilians, and Kosovar Albanians and the displacement of hundreds of thousands more can hardly be viewed as a victory for humanitarianism.”

It is the purview of the United Nations, not the United States, to authorize humanitarian intervention. If the United States really wanted to provide humanitarian assistance to the people of Yugoslavia, it would encourage the International Monetary Fund to forgive $14 billion in loans from prior regimes, finance reparations to rebuild the infrastructure destroyed by its bombs, and remove the U.S. troops from the region.

June 2, 2001

The Deportation of Slobodan Milosevic

The deportation of former Yugoslav leader Slobodan Milosevic to the International Criminal Tribunal for the Former Yugoslavia was a direct result of blackmail by the United States. Desperate to rebuild its economy, the Serbian government capitulated to U.S. threats: deliver Milosevic to the war crimes tribunal in The Hague, Netherlands, or the U.S. would see to it that Yugoslavia didn’t get the foreign aid it critically needs.

Ten years of punishing sanctions against the people of Yugoslavia coupled with U.S.-led NATO’s 78-day bombing campaign have left the country’s economy in shambles. Damage to the Yugoslav economy is estimated at $4 billion. One million people live below the poverty level, half the population is unemployed, and Yugoslavia has an annual inflation rate of 150 percent and a foreign debt of $12 billion.

The U.S. destroyed the economy of Yugoslavia, killed or wounded thousands of its people – including civilians – and then promised megabucks to the Serbs if they would cough up Milosevic. Usually the ransom is paid to end the kidnapping. This time it was ponied up as a reward for the kidnap. And the payoff? $1.28 billion in aid from the July 29 donors conference, orchestrated by the United States.

Serbian Prime Minister Zoran Djindjic arranged the deportation by circumventing the recently elected President of Yugoslavia, Vojislav Kostunica. According to Sara Flounders, National Co-Director of the International Action Center, “Milosevic was sold to the U.S. by their man in Belgrade. Imagine a governor of a state in the U.S. overriding the federal government and constitution to surrender a U.S. citizen to another country.”

Kostunica, adamantly committed to due process, insisted that Yugoslavia’s judicial procedures be followed before Milosevic was delivered to the ICTY in The Hague. The deportation, which Kostunica said could not be characterized as legal and constitutional, violated Yugoslavia’s constitution, parliament, Constitutional Court, and decisions of President Kostunica. Former U.S. Attorney General Ramsey Clark denounced the deportation as “an enormous tragedy for Yugoslavia, the Serbian people and the rule of law.”

While the leaders of the Western world cheer the “extradition” of Milosevic – a misnomer because he wasn’t sent to another country, but to an international tribunal – the fragile democracy in Yugoslavia has been dealt a severe blow. Ramsey Clark thinks the real purpose of the deportation, sanctions, bombing and demonization of the Serbs “is to reduce all of the former Yugoslavia to the status of a U.S./NATO colony.”

Kostunica has decried the partiality of the ICTY for its hypocrisy in indicting Serbs, but refusing to indict NATO leaders for war crimes committed in the course of the 1999 bombing. NATO bombs killed 1500-2000 civilians and injured thousands more. When I was in Yugoslavia last year, I saw schools, hospitals, bridges, libraries and homes reduced to rubble. The ICTY statute prohibits the targeting of civilians. And even though it also forbids the use of poisonous weapons calculated to cause unnecessary suffering, NATO used depleted uranium and cluster bombs whose devastating character is widely known. NATO also targeted a petrochemical complex, releasing carcinogens into the air that reached 10,600 times the acceptable safety level.

Yet the ICTY conducted only a perfunctory investigation of charges of NATO war crimes. Both Amnesty International and Human Rights Watch criticized the ICTY for failing to thoroughly investigate these serious charges. Kostunica’s allegation of the ICTY’s bias is not surprising. NATO spokesperson Jamie Shea stated in May 1999, “Of course NATO supports the ICTY – NATO created it.”

The prosecutors of the Vietnam War – Lyndon Baines Johnson, Henry Kissinger and Robert McNamara – were never tried for war crimes for causing the deaths of 3 million Vietnamese people. It was McNamara who defined most of the Vietnamese countryside, populated by peasants, as a free-fire zone. He wrote in a letter to LBJ in 1967: “The picture of the world’s greatest superpower killing or seriously injuring 1,000 noncombatants a week, while trying to pound a tiny backward nation into submission on an issue whose merits are hotly disputed, is not a pretty one.” McNamara admitted his complicity in a 1995 memoir.

Indeed, the hypocrisy of the United States government is no more evident than in its refusal to ratify the statute for the International Criminal Court, out of fear that U.S. leaders might become defendants in war crimes prosecutions. Yet, our government was baffled when the United States — the world’s human rights policeman — was voted off the United Nations Commission on Human Rights.

Most of the Serbs I have spoken with are outraged by Milosevic’s alleged atrocities, and they feel he should be tried and punished for crimes he committed. But there is a widespread perception in Yugoslavia that Serbs are being collectively targeted for what their leaders have done. Many feel that Milosevic and other indicted Yugoslav leaders should be tried first in Yugoslavia for crimes committed against the Yugoslav people.

A fundamental principle of international law is complementarity: the international tribunals complement – they don’t supplant – the courts of nation states. Most of the former Latin American military leaders charged with human rights abuses that occurred in the 1970s and 1980s are facing justice in their respective countries. The Yugoslavians should be able to judge their own leaders before the they are judged by the international community.

Count 1 of the Indictment against Slobodan Milosevic charges him with “Deportation, a crime against humanity . . .” He must be accountable for what he has done. But the U.S.-engineered deportation of Milosevic is a crime against the people of Yugoslavia.

April 27, 2001

Pacification for a Pipeline: Explaining the U.S. Military Presence in the Balkans

Despite President George W. Bush’s rhetoric about withdrawing our forces from the Balkans, we can expect a strong continuing U.S. presence there. Why? It’s all about the transportation of massive oil resources from the Caspian Sea through the Balkans, and maintaining U.S. hegemony in the region.

Although NATO ostensibly bombed Yugoslavia to stop ethnic cleansing, the bombing was actually part of a strategy of containment, to keep the region safe for the Trans-Balkan oil pipeline that will transport Caspian oil through Macedonia and Albania. The pipeline is slated to carry 750,000 barrels a day, worth about $600 million a month at current prices.

Cooperation of the Albanians with the pipeline project was likely contingent on the U.S. helping them wrest control of Kosovo from the Serbs. The U.S. seeks to contain Macedonia as well, supporting both sides in the conflagration there. Military Professional Resources International, a mercenary company on contract to the Pentagon, has trained both the Kosovo Liberation Army and the Macedonian army. MPRI also supplied and trained the Croatian army in 1994 and 1995 before the Croatians cleansed more than 100,000 Serbs from the Krajina region.

The bombing was not aimed at ethnic cleansing. It was part of U.S.-run NATO’s eastward expansion as a counterweight to Russia, which wants the Caspian oil pipeline to run through its territory. NATO, created during the Cold War to protect Western Europe from the Soviets, should have disbanded after the breakup of the USSR.

But a 1992 draft of the Pentagon’s Defense Planning Guidance advocated continued U.S. leadership in NATO by “discouraging the advanced industrialized nations from challenging our leadership or even aspiring to a larger global or regional role.” Secretary of State Colin Powell recently said, if we decide to expand NATO, “we should not fear that Russia will object; we will do it because it is in our interest.”

Bush is walking a delicate tightrope. He calls for Europe to do the grunt work in the Balkans, but also wants to prevent the European Union from becoming more powerful than U.S.-led NATO. A U.S. Army officer stationed in Bosnia, speaking anonymously to the Los Angeles Times, observed wryly, “The only thing the Europeans need us Americans for is the leadership.”

The U.S. has invested too much in the region to pull out. After the NATO bombing campaign, the U.S. spent $36.6 million to build Camp Bondsteel in southern Kosovo. The largest American foreign military base constructed since Vietnam, Bondsteel was built by the Brown & Root Division of Halliburton, the world’s biggest oil services corporation, which was run by Richard Cheney before he was tapped for Vice-President.

NATO’s bombs, never sanctioned by the United Nations, were not “humanitarian intervention.” The alleged mass graves were never found by the FBI, and the 10,000-11,000 bodies NATO touted turned out to number about 2000-3000, mostly in KLA strongholds. Even the Marine Corps Gazette concluded after the bombing that the “resulting deaths of thousands of Serbian soldiers, civilians, and Kosovar Albanians and the displacement of hundreds of thousands more can hardly be viewed as a victory for humanitarianism.”

It is the purview of the United Nations, not the United States, to authorize humanitarian intervention. If the U.S. really wanted to provide humanitarian assistance to the people of Yugoslavia, it would encourage the International Monetary Fund to forgive $14 billion in loans from prior regimes, finance reparations to rebuild the infrastructure destroyed by its bombs, and remove the U.S. troops from the region.

The Crime of Aggression: What Is It and Why Doesn’t the U.S. Want the International Criminal Court to Punish It?

From February 26 through March 8, the Preparatory Commission for the International Criminal Court met in an attempt to forge agreement on defining and punishing the crime of aggression. The Rome Statute for the ICC, written in 1998, will take effect after ratification by 60 states. It specifies the Court will hear charges of genocide, war crimes, crimes against humanity and the crime of aggression. But the drafters, unable to agree on a definition and scheme for punishing aggression, left that to an amendment process which allows statutory changes to become operative seven years after the Statute takes effect.

The United States has sought to ensure the ICC’s legal processes do not jeopardize its role as global superpower by subjecting U.S. leaders to prosecution. It has consistently resisted definitions and jurisdictional provisions that may challenge U.S. impunity for wars of aggression.

Following the Holocaust, the International Military Tribunal at Nuremberg called the waging of aggressive war “essentially an evil thing . . . to initiate a war of aggression . . . is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” Associate United States Supreme Court Justice Robert Jackson, one of the prosecutors at the Nuremberg Tribunal, labeled the crime of aggression “the greatest menace of our times.”

At Nuremberg, for the first time, individuals were held criminally accountable for waging a war of aggression. The Nuremberg Charter proclaims the principle that “individuals have international duties which transcend the national obligations of obedience imposed by individual states.” The fact that a defendant acted under orders from a superior did not absolve him of responsibility, although it was considered in mitigation of punishment.

The Tokyo War Crimes Tribunal was also established following World War II, to try Japanese military and political leaders accused of committing atrocities. United States leaders who were responsible for at least two of the most heinous war crimes in the history of the world – the atomic bombings of Hiroshima and Nagasaki – as well as unrestricted submarine warfare in the Pacific and the “Great Turkey Shoot,” were never brought before these two tribunals.

Only the vanquished Germans and Japanese were held accountable for their war crimes and crimes of aggression. In the words of Justice Radhabinod Pal of India, dissenting at the Tokyo Tribunal, that was “victor’s justice.”

The United States and its “victorious” allies are once again escaping responsibility for war crimes, this time for those committed against the people of Yugoslavia. For although several war criminals have been brought before the International Criminal Tribunal for the Former Yugoslavia, it has refused to indict NATO leaders, in spite of criticism from Human Rights Watch and Amnesty International.

Walter Rockler, another Nuremberg prosecutor, has said the United States initiated a war of aggression against Yugoslavia. He wrote in the Chicago Tribune: “The notion that humanitarian violations can be redressed with random destruction and killing by advanced technological means is inherently suspect . . . This is mere pretext for our arrogant assertion of dominance and power in defiance of international law.”

More than 50 years before, in his report to the State Department, Justice Jackson wrote: “No political or economic situation can justify” the crime of aggression. He also said: “If certain acts in violation of treaties are crimes they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.” An impartial international criminal tribunal is necessary to prevent “victor’s justice.”

The major points of contention at the recent ICC PrepCom Working Group on Aggression centered around the definition of the crime of aggression (a legal question) and the jurisdictional authority to decide when aggression has occurred (a political question).

Many of the countries at the PrepCom advocated a definition set out in 1974 in General Assembly Resolution 3314, which was passed in the wake of Vietnam. It provides: “Aggression is the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations, as set out in this definition.”

The Resolution contains a non-exclusive list of actions that would constitute aggression, including the invasion or attack by armed forces of a state of the territory of another state; bombardment or use of weapons by the armed forces of a state against the territory of another state; and the blockade of ports or coasts of a state by the armed forces of another state.

Some countries, like Libya, argue that aggression should be defined to include the confiscation of property and the establishment of settlements in occupied territories. The United States continues to freeze Libyan assets and Israel persists in building settlements on the West Bank. Aggression could also conceivably be defined to outlaw preemptive strikes and the kind of naval blockade President John F. Kennedy used during the Cuban Missle Crisis.

The most controversial issue dealt with at the PrepCom was specifying which body will make the determination that a state has committed an act of aggression, if indeed such a finding is a condition precedent to individual liability. The United Nations Charter grants the Security Council primary responsibility to maintain international peace and security. Article 39 says: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression.”

The dispute centers around what happens if the Security Council doesn’t make a determination that an act of aggression has occurred, either because one of the five permanent members (United States, Great Britain, France, China and the Russian Federation) vetoes such a finding, or because the Security Council simply fails to act.

Many countries, including the United States, feel that that ends the matter. Others believe an independent judicial finding of individual criminal liability could be made, even if the Security Council does not find as a threshold matter that a state has engaged in aggression. They fear that a Security Council veto would effectively block the ability of the ICC to act to punish aggression.

One possibility is that, in the absence of Security Council action, the General Assembly (the U.N.’s democratic organ) could ask the International Court of Justice (the World Court established in the U.N. Charter) for an advisory opinion on whether aggression has occurred. The ICJ doesn’t have authority to hear criminal charges against individuals. But if the ICJ were to find a state had engaged in aggression, the ICC prosecutor could proceed against individuals in that state for the crime of aggression.

The United States is, of course, vehemently opposed to this procedure. It wants to maintain the prerogative to exercise its Security Council veto over a finding that the United States has committed aggression.

But there is precedent for General Assembly action in the absence of direction from the Security Council. It is the “Uniting for Peace” resolution. During the Korean War, the Security Council would not mandate a U.S.-led effort into North Korea, because of the Soviet veto. Secretary of State Dean Acheson secured the passage of the Uniting for Peace resolution in 1950, to legitimize the General Assembly’s authority.

The Resolution reads: “If the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to members for collective measures. These recommendations can include in the case of a breach of the peace or act of aggression the use of armed force when necessary to maintain or restore international peace and security.”

Article 1 of the Charter of the United Nations proclaims the goal of suppressing acts of aggression “in conformity with the principles of justice and international law.” The International Criminal Court, which will serve a crucial purpose in the system of international justice, should be empowered to punish those who commit the supreme crime, the crime of aggression, regardless of their country of origin.

March 22, 2001

Bush Continues Illegal and Inhumane U.S. Persian Gulf Policy

President George W. Bush’s “routine” bombing attack on Iraq should come as no surprise. It is a conscious and systematic continuation of the Bush I-Cheney-Powell-Clinton policy of keeping steady pressure on Saddam Hussein to sustain U.S. hegemony in the Persian Gulf. Iraq has the second largest oil supply in the world. Humanitarian rhetoric notwithstanding, the unlawful bombing and sanctions regime serves to maintain the United States as the dominant force in the region.

The Pentagon says our bombers were acting in “self-defense” when they struck near Baghdad Friday, because Iraq has been resisting U.S./British patrols in the “no-fly- zone” over Iraq’s airspace. Our leaders are using this outlandish theory to avoid charges that we’re violating the UN Charter, which prohibits the use of force against a sovereign nation except in self-defense or when authorized by the Security Council. The no-fly zone has never been sanctioned by the Security Council, and the killing and wounding of civilians clearly violates international law.

The U.S. government justifies its strategy to overthrow Saddam Hussein as necessary to prevent him from proliferating weapons of mass destruction. Ironically, it was the United States that gave him the technology to develop chemical and biological weapons in the first place, according to a 1996 Associated Press report.

The only weapons of mass destruction in Iraq are the U.S./British bombers and the crippling sanctions. Scott Ritter, a former weapons inspector in Iraq recently said, “There is absolutely no reason to believe that Iraq could have meaningfully reconstituted any element of its WMD [weapons of mass destruction] capabilities in the past 18 months.” But, in spite of UN Resolution 687, which calls for the creation of a weapons of mass destruction-free zone throughout the Middle East, the United States ignores Israel’s large stockpile of nuclear weapons.

Shortly after Operation Desert Storm in 1991, where U.S. and British bombs killed 100,000 Iraqi men, women and children, and destroyed Iraq’s infrastructure, then Secretary of Defense Dick Cheney expressed his desire to broaden the United States’ military role in the region to hedge future threats to Gulf oil resources. Between his service in the Bush I and Bush II administrations, Cheney served as CEO of Halliburton Co., the biggest oil-services company in the world.

For the past two years, the United States and Britain have continued to bomb Iraq, as frequently as every other day, without UN authorization. And we have prosecuted a campaign of economic sanctions that, according to UNICEF, has killed 4000 Iraqi children every month since 1991. When confronted with these figures in 1996, Clinton’s Secretary of State Madeleine Albright said on 60 Minutes, “We think the price is worth it.”

Evidently, her successor agrees. When he accepted Bush’s nomination for Secretary of State, Powell stressed his support for maintaining and strengthening the sanctions against Iraq. He must be aware that although these sanctions are aimed at Saddam Hussein, it is the people of Iraq who suffer from them.

General Colin Powell was also impervious to the suffering of thousands of U.S. vets who contracted Gulf War Syndrome following Desert Storm. Charles Sheehan-Miles, a director of the National Gulf War Resource Center, said that four or five years ago, Gulf War vets were refused treatment by the VA. “We got silence from Powell, Schwarzkopf and Cheney. We wrote a couple of letters to Powell asking for help and never got a response. That was a severe disappointment.”

With Friday’s stepped-up bombing, the U.S. is sending a message to Saddam Hussein that the pressure’s still on, in spite of widespread Arab opposition to the bombing and the sanctions. Colin Powell, who will visit the Persian Gulf next week, said our goal is to “keep the pressure on” Hussein. As Captain Genter Drummond, a retired U.S. Air Force fighter pilot who flew bombers during Desert Storm said on CNN Friday night, George W. Bush is “the new teacher on the playground.” The Commander-in-Chief has changed but the policy remains the same.

December 21, 2000

States Rights When the End Justifies the Means

At first blush, the five justices who decided to name George W. Bush the 43rd president appear to be hypocritical. How could these staunch “states rightists” now decry federalism in order to quash the Florida Supreme Court’s interpretation of Florida’s election statutes? While admitting that the court “generally defers to state courts on the interpretation of state law,” Chief Justice Rehnquist, in his concurrence (joined by Justices Scalia and Thomas) relied on two civil rights cases from 1958 and 1964, where the Warren Court struck down state Jim Crow laws.

Nothing disingenuous about that. In the last decade, the same majority of five conservative justices has deferred to states rights in many cases while strengthening the repressive mechanisms of the federal government in others. Conservatives traditionally favor states rights in order to maintain local autonomy over issues such gun control, tobacco rights (if you can call them rights), disability rights, and violence against women, saying that states are closer to the people. States, however, often repress their own citizens at the behest of local special interests.

The Supreme Court has used this “new federalism” to immunize state governments from lawsuits in both state and federal courts. In January, for example, the court immunized states from suits by their employees for violating the Age Discrimination in Employment Act, and in May, the Supreme Court voided the rights of victims of rape, domestic violence and other gender motivated crimes to sue their attackers in federal court. According to Katherine J. Rogers, Executive Director of the NOW Legal Defense in Education Fund, which represented the plaintiff, the decision took the federal government out of the business of defining civil rights and creating remedies. Chief Justice Rehnquist wrote for the majority that the general police power was something the founders denied the national government and reposed in the states.

Although the last decade has seen the Supreme Court steadily erode the ability of Congress to regulate civil rights, the court has not hesitated to strengthen the ability of the federal government to repress people in this country and abroad. Construing the Supremacy Clause, which grants Congress the power to preempt state law, the Supreme Court struck down a Massachusetts statute aimed at boycotting companies that do business in Myanmar (Burma). The U.S. State Department had documented numerous labor and human rights abuses in Myanmar including the killing and torture of dissidents and ethnic minorities as well as forced labor. In 1995, the court overturned a law that prohibited carrying a gun near a school, the first time since the New Deal it had struck down a law for exceeding the power of Congress to regulate interstate commerce. Federalism, a doctrine of convenience, has been used selectively by the court.

In her dissent in Bush v. Gore, Justice Ginsburg chastised the Chief for his “casual citation” of the two civil rights era cases, reminding us they were unique to the Jim Crow South. Perhaps Chief Justice Rehnquist, who favored maintaining Plessy v. Ferguson’s racist separate but equal doctrine, sought to preempt criticism of his motives in preempting a Gore victory in this election. And maybe Justices Scalia and Thomas refrained from penning separate opinions, letting the Chief do the dirty work, in order to forestall similar charges of partisan conflicts of interest. Once again, the end justified the means.

December 5, 2000

High Court Hides From Camera in Bush v. Gore

When the Supreme Court entertained arguments last Friday that could determine who will be the 43rd president of the United States, it worked virtually in private. Unlike the Florida Supreme Court, which let the sunshine (and television cameras) into the hearing that gave the green light to hand-counted ballots, the highest court in the land convened before just 80 members of the public.

The nine justices of the United States Supreme Court refuse to allow television coverage of their hearings. Reasons given range from protection of their personal privacy to preservation of the Court’s mystique. Chief Justice William Rehnquist told a 1992 judges’ conference that if the justices didn’t look good on camera, “it would lessen to a certain extent some of the mystique and moral authority” of the Court.

Justice Harry Blackmun, author of the Court’s opinion in Roe v. Wade, once passed a group of anti-abortion protestors during his noontime stroll. Unrecognized, he stood and looked on as they railed against the rights protected by the bystander’s most famous decision.

Twenty-three hours before the Supreme Court’s 1989 hearing in Webster v. Reproductive Health Services, which many thought might overturn Roe v. Wade, hopeful spectators began lining up in front of the Supreme Court building to vie for the few public seats. A scalper sold the eleventh place in line for $100.

The Supreme Court has held that there is a right to a public trial. But it is not clear whether a public trial means a televised trial. When a defendant appears in court, there may be valid reasons for excluding a camera, if the publicity could harm his or her constitutional right to a fair trial. But when the Supreme Court hears arguments, there are no witnesses or jurors to be influenced or intimidated by the cameras.

Although Justice Ruth Bader Ginsburg told a group of University of Virginia law students that she generally favors gavel-to-gavel cameras in the courtroom, she didn’t specifically include the Supreme courtroom. She said: “The problem is the dullness of most court proceedings,” adding, “It’s often tedious.”

Justice Antonin Scalia once told an audience condescendingly that “law is a specialized field, fully comprehensible only to the expert.”

Yet millions sat glued to their television sets two weeks ago as the Florida Supreme Court grappled with technical legal issues of statutory construction. The High Court on Friday was faced with deciding whether the Florida Supreme Court violated federal law or the United States Constitution. Public interest in this hearing was overwhelming. It is imperative that the American public, so polarized in this post-election limbo, perceives the ultimate decision-making process as a fair one.

The Supreme Court’s denial of the petition filed by C-Span and CNN to allow cameras to televise Friday’s arguments was a foregone conclusion. As Justice David Souter told a House Appropriations subcommittee in 1996: “The day you see a camera come into our courtroom it’s going to roll over my dead body.”

However, the Court took a small but significant step by allowing an immediate release of an audiotape of the proceedings, which in ordinary circumstances, wouldn’t be released for several months. In 1955, Chief Justice Earl Warren inaugurated the practice of audiotaping oral arguments. But although the tapes were turned over to the National Archives, scholars who checked them out had to sign a lending agreement that they wouldn’t reproduce them. University of California-San Diego political science professor Peter Irons defied the agreement in 1993 and marketed the tapes with a transcript entitled “May It Please the Court.” The Court, furious, threatened “legal remedies” but never followed through with its threat.

Justice Sandra Day O’Connor told conference attendees in Colorado a few years ago: “Eventually we will probably have television. But it probably won’t be for a good while.” How long a while that will be is anyone’s guess. Hopefully, Justice Souter will live to see the day.

November 5, 2000

Marching Against U.S. Punishment Politics in Cuba

None of the demonstrations I attended in the 60s prepared me for the experience of marching with one million Cubans last month to protest the United States’ blockade against Cuba. More than 100 U.S. lawyers from the National Lawyers Guild joined the march.

Absent was the tension always present in U.S. marches, which usually protest against the government. Fidel Castro led the Cuban march. Scores of children laughed and sang as they walked with their arms around each other. Attendance at the Cuban event was voluntary and the police were unarmed. Tear gas and rubber bullets, staples in American protests, were nowhere in sight.

Forty years ago, the U.S. imposed an “all-out ‘quarantine’ – economically, politically and diplomatically – of the Castro regime,” in the words of Vice President Richard Nixon. Its aim was to starve the people so they would overthrow Castro’s communist government, yet he remains in power. The Cold War has ended and the U.S. has normal relations with China and Vietnam. Nonetheless, we maintain a blockade against Cuba tighter than any other in the world. Its restriction on the sale of medicine and food is unprecedented.

Notwithstanding rhetoric to the contrary, the legislation passed last month actually strengthens the blockade, by forbidding U.S. financing to Cuba to buy food from American farmers, and tightening the travel ban. Although an overwhelming majority of both the House and Senate had voted to relax the blockade, the GOP House leadership and right-wing Cuban-American members of Congress held the rest of Congress and President Clinton hostage at this crucial election juncture. Indeed, the pivotal role of Florida – the center of anti-Castro sentiment – in the excruciatingly close presidential election does not bode well for an early lifting of the blockade.

Meanwhile, Cubans suffer under the thumb of a vitriolic policy of economic isolation imposed by the U.S. Some flee in small unseaworthy crafts. But, scores of people from Mexico and Central America perish every year trying to cross the U.S. border. And, the U.S. approves only about 10 percent of visa applications from Cubans who seek to visit relatives in the U.S. but wish to remain in Cuba. Of the Cubans who have come to the U.S. on non-immigrant visas and who could have requested to stay under U.S. laws, 95 percent have voluntarily returned to Cuba.

Behind me in the march were large twin photographs of Jose Marti, the father of the Cuban revolution, and Abraham Lincoln. Castro is fond of quoting Lincoln’s “of the people, by the people and for the people.” The Cuban constitution enshrines due process rights, the right to work, to education, to medical and dental care, to prenatal care and paid maternity leave, to child care, to participate in the running of the state, and the right to a life free of racial or gender discrimination. Although, like the U.S., Cuba still has the death penalty and instances of racial profiling, the chief justice of the Supreme Court is black.

Cuba has the highest literacy rate in the Americas and one of the highest in the world. Vice President Al Gore told a Canadian magazine in 1994, “It’s disgraceful that we have this level of illiteracy; countries like Cuba put us to shame when it comes to this problem.” There are more doctors per capita in Cuba than any other country in the world. In fact, when representatives of the Congressional Black Caucus complained recently to Castro about the lack of doctors for the poor in the U.S., he offered to send them some Cuban doctors. He also offered 500 medical scholarships for Third World youth and other groups, on the condition they return to the U.S. to care for people in their communities.

At 74, Castro has demonstrated not only resilience but also a capacity for change reminiscent of Martin Luther King, Jr. and Malcom X. Since the Pope’s visit, Cubans enjoy more religious freedom. A woman at a Jewish synagogue in Havana told us that when Castro visited at Chanukah, he regaled them for two hours with stories of Jewish history and was well versed on the Holocaust. Castro quipped to our group that if he hadn’t been a guerrilla, he would’ve been a pastor. He says, “He who betrays the poor betrays Christ.”

The U.S. government continues to betray the poor in Cuba, who remain under a state of siege in an undeclared war by the United States. We must lift the blockade of Cuba, not just for the Cuban people, but for our own humanity.