US Withdrawal from ICJ Review of Vienna Convention Cases

The US has withdrawn from the agreement allowing the International Court of Justice to review cases involving the Vienna Convention. The court ruled last year that the US had failed to comply with the provisions of the Vienna Convention granting access by consuls of the home country to Mexicans arrested in the United States.

The decision to withdraw is a sad one for the US, since we should be leading the way in respecting law, not acting as a scofflaw. In addition, the Vienna Convention will do more to protect American citizens who are arrested overseas than it will interfere punishing with foreigners arrested in the US. Despite all the press about our treatment of some people arrested on terrorist charges (see my previous post), Americans do not routinely torture suspects arrested by the police, while other countries do, which is why I so strongly oppose the policy of rendition of US prisoners to other countries.

This is another example of the neo-cons' contempt for international law, regardless of the justifications made below by the State Department briefer. Contempt for international law is probably a self-fulfilling strategy. Law depends on tradition and precedent, and to the extent that the US asserts its sovereignty and refuses to acknowledge international law, international law ceases to function. Traditionally good, moral countries have benefited from international law, and bad countries have been hindered by it, which is not to say that international law will prevent a bad country determined to go to war with its neighbors from doing so, but it is a hindrance, and tends to show who is right and who is wrong. By snubbing its nose at international law, the US is lining up on the wrong side of the law with the bad guys.

Another neo-con objection is that opponents of the death penalty are using this international law provision to try to block executions, which is true. But, on the other hand, if the states involved, particularly Texas, had complied with the provisions of the Vienna Convention by granting Mexican consuls access to the prisoners, then this channel would not be open to the death penalty opponents. The states left themselves vulnerable by failing to abide by the Vienna Convention. Plus, the death penalty issue cuts another way: these are not cases of petty theft or shoplifting; these are cases in which the state is going to kill the accused. Therefore, it seems proper that the state should make a concerted effort to fulfill every legal requirement before it does so, including complying with the Vienna Convention.

The following is the statement made at the Department of State press briefing on March 10, 2005:

QUESTION: Adam, can you discuss a bit about the rational behind the Administration's decision to withdraw from the optional protocol through the Geneva Conventions which give the International Court of Justice and measure of jurisdiction in U.S. capital cases? There's already criticism that this is part of a continuing trend of unilateralism --

MR. ERELI: Right. Well, let me address that latter criticism first. I don't think anybody should conclude by our decision to withdraw from the optional protocol that we are any less committed to the international system or that we are in any way walking back from international commitments. To the contrary, we remain a party to the Vienna Convention, we remain committed to fulfilling its provisions and we stand by it.

Second of all, the International Court of Justice, pursuant to a dispute referred to it under the optional protocol, rendered a judgment in the Avena a case dealing with how state courts in the United States handles certain capital cases of foreign nationals' claim to consular access. That is a decision that -- the decision the ICJ handed down is a decision, frankly, that we don't agree with.

Yet, in recognition of the optional protocol and our international commitments, the President has determined that the United States will comply with the judgment of the International Court of Justice and that we will review -- our state courts will review -- the cases that ICJ responded to.

However, we would also note that when we signed up to the optional protocol, it is not anticipated that this -- that when you refer a case -- cases that would be referred to the ICJ and the ICJ would use the -- and the optional protocol would be used to review cases of domestic criminal law.

This is a development, frankly, that we had not anticipated in signing up to the optional protocol and that we, frankly -- we -- and I would note, you know, 70 percent of the countries that are signatories to the Vienna Convention also decided not to sign up to the optional protocol so it's not just the United States going against everybody else. I mean, we are in a sense joining an existing majority in not participating in the optional protocol and the reason is because we see the optional protocol being used by people or developing in -- going in directions that was not our intent in getting involved.

I mean, so the bottom line is we believe in the international system, we are a committed participants in the international system, as reflected by our continued commitment to the Vienna Convention and its provisions, as well as our decision to comply with the judgment. But at the same time, we see that in this specific case, and in the use of optional protocol, frankly, the way it's being interpreted, the way it's being used, go against the ideas -- the original ideas -- that we signed up for.

QUESTION: But protocol came in handy for the United States during the Iran hostage crisis. Then there's criticism that we're now cherry-picking the provisions that we like and don't like, that this might be short-sighted in the long-run.

MR. ERELI: Well, again, I don't think we're cherry-picking. I think that this is a really unexpected and unwelcome precedent where people who don't like decisions of our state courts can use an international court as a court of appeal. And that doesn't make any sense at all. And so what we're talking about is, we've got a system of justice that works in the United States and I don't think you should compare it to other countries, like Iran in 1979. We have a system of justice that works. We have a system of justice that provides people with due process and review of their cases. And it's not appropriate that there be some international court that comes in and can reverse decisions of our national courts.

QUESTION: A follow-up?

MR. ERELI: Yeah.

QUESTION: But why does the United States on the one hand decide to, you know, go along with this ruling to review these cases and then just days later decide to pull back?

MR. ERELI: Because, precisely because, we respect the international system, because we respect the authorities and the jurisdictions of international institutions when we sign up to those international -- when we sign up and submit ourselves to those jurisdictions. So it shows that, look, even though we don't like something, even though we think it's wrong, if we submitted ourselves to that jurisdiction freely and according to international obligations, then we will honor those international obligations. And that's why we are complying with the case.

But we're also saying in the future we're going to find other ways to resolve disputes that come under the Vienna Convention other than submitting them to the ICJ. We'll do something else. So we're still committed to the Vienna Convention. We're still committed to upholding its principles and fulfilling our obligations under that convention. What we are saying is when there are questions about that, we'll seek to resolve them in a venue other than the ICJ. Given that the ICJ is in this case, as well as the Lagrand case, establish a precedent of using this mechanism to affect our domestic legal system.

US Treatment of Prisoners Accused of Terrorism Is Becoming a Scandal

The various reports of mistreatment of Muslims accused by the Administration of being terrorists are becoming so widespread that it is reaching scandalous proportions. In Iraq, Abu Ghraib is the most widely known, but there are allegations of mistreatment at other Iraqi facilities. Several prisoners are reported to have died in US custody in Afghanistan. There are numerous reports of mistreatment of prisoners at Guantanamo. Finally, there are prisoners who are unaccounted for although they were arrested or captured by US police or military; most of these are thought to be in countries that will torture them on behalf of the US under a process called rendition.

Today there are reports that a judge has blocked the transfer of 13 Yemenis from Guantanamo to some unknown site. Apparently the Administration wished to transfer them somewhere, because it is afraid that the US court system, in accordance with recent decisions by the US Supreme Count, will assert its authority over them and make the government prove that it has some legal basis for holding them. Attorneys got wind of this plan and got a judge to block their transfer while the courts still had authority over the prisoners. Much to the government's dismay, the Supreme Court held that keeping prisoners at Guantanamo did not prevent the courts from having jurisdiction over them. So, the administration apparently wanted to move them farther away to a foreign country where the Supreme Court would have less basis for exercising its authority.

It remains to be seen, but some justices on the Supreme Court may not like the government's attempt to undermine the Court's ruling and avoid its jurisdiction by moving the prisoners. That, plus the disturbing stories of how the prisoners that were captured by US authorities have been treated in foreign countries under the extraordinary rendition process, may cause the Supreme Court to extend its reach farther than it has in the rulings to date.

The whole matter of treatment of prisoners taken in the "war on terrorism" disgusts me. I am deeply disappointed that the US has stooped to terrorist methods in fighting terrorism. When the government abandons our system of laws under the Constitution, the terrorists have won a battle, if not the war. I was disappointed that Kissinger and Holbrooke today on CNN's Late Edition failed to roundly condemn the process of rendition, although they certainly did not say that it is a good thing.

America has ceased to be a shining city on a hill, which it has been at some times in the past, if not at all times. Lights of freedom, honor and dignity are going out all over the America. Part of the reason for this is that many in government are cowards. They avoided service in Vietnam. Even if they are too young to have served in Vietnam, they are not interested in serving the country, but they came into power interested in milking the country for every red cent they could get. Then when they were laying the foundation for paying off all the powerful interests that put them in power -- passing tax cuts, etc. -- terrorists attacked us. The attacks succeeded because the administration was asleep, and now is terrified that there will be other attacks. Partly they are afraid that they will die, and partly they are afraid that if they fail to stop another attack the American people will wake up and turn against them for their failures. Therefore, they have panicked and resorted to torture and other illegal or immoral means to try to stop another attack, when the proper response would be to look the terrorists in the eye, and say, "You can't make me stoop to your level. I can beat you by fighting you legally and morally." But this group of cowards can't face up to that.

Some time ago, Pat Buchanan said on the McLaughlin Group television show that midway through his second term, George Bush II would be mired in a huge scandal. He didn't say what it would be, and probably was just extrapolating from the experience of previous two-term presidents: Clinton's Monica scandal and impeachment, Reagan's Iran-Contra, Nixon's Watergate, etc. However, the high-handed, illegal, immoral treatment of those captured by US authorities in the war on terrorism may be it.

Joyce's Ulysses

I am concerned that so much of this blog has recently been about Jews. This was never an issue for me until I was assigned to the American Embassy in Warsaw, Poland, during the 50th anniversary of the end of World War II. It was all-Holocaust all the time. It was totally in your face. It appeared that the Holocaust was the most important thing that happened in World War II.

Of course, actually the most important thing was that the Allies defeated Hitler. If they hadn't, where would the Jews be? It was particularly grating because my father fought in Europe during World War II. Shouldn't he get some recognition for that? Now with the Jewish spin, there is mostly criticism that the Allies were too slow liberating the Nazi death camps. But they did liberate them. Couldn't the Jews at least say "Thanks"?

I just started reading James Joyce's Ulysses, which probably means I have too much time on my hands, but I found the following in the opening pages:

"Of course I'm a Britisher, Haine's voice said, and I feel as one. I don't want to see my country fall into the hands of German jews either. That's our national problem, I'm afraid, just now."

This comes after considerable discussion running down the Roman Catholic church.

I don't know much about Ulysses, except that it's supposed to be a classic. I suppose even classics might contain anti-Semitism. But it might be that Jews are not entirely guiltless in this matter. Israel is a small country, but it is responsible for an enormous amount of the animosity in the world.

In general, Anglos are somewhat reserved and perhaps cold. Jews are not. I remember a description in the Wall Street Journal years ago of the different personalities of former Citibank chief John Reed, an Anglo, and his successor, Sandy Weill, a Jew who forced Reed out, albeit with a huge golden parachute. The Journal talked about how cold Reed was and how in-your-face Weill was.

I just stumbled on another similar description in Business Week on the Internet of Weill and then-American Express CEO James Robinson III.

"The merger discussions between Weill and Robinson were marked by their contrasting personalities and backgrounds. Weill was a striver who had fired thousands and alienated some of his former partners and, doubtless, many others on his way to the top. Robinson had glided into power, it seemed, stepping on few, if any, toes. Weill was as emotional as Robinson was cool. Shearson was as loud and noisy as AmEx was buttoned-down and corporate. They knew there would be a culture clash, but they hoped the new firm would gain the best of both cultures.

"Not only were Robinson's and Weill's personalities and backgrounds different, so were their management styles. At the time of his merger negotiations with Robinson, Weill still ran Shearson as he had run CBWL-Hayden Stone, smoking cigars, getting in subordinates' faces, making snap decisions, and continuing to combine personal and professional lives. For example, he and Joan would go on vacations with key executives and their wives after weeks of all-nighters working on a deal.

"Robinson, known as 'Jimmy Three Sticks,' ran American Express like the Fortune 500 company it was. Son of a banker from a prominent Atlanta family, he spoke with polish. Thoughtful and considerate, Robinson embodied the image of a courtly Southern gentleman. In his frequent speeches and public appearances around the world, he came across as a strong, hard-charging CEO, yet inside the firm, his leadership style could be described as conservative. He eschewed risk, preferring a bureaucratic, committee approach to decision making. A formal process was in place to vet new ideas. Things moved slowly and inefficiently to avoid mistakes.

"Importantly for Weill's later showdowns with John Reed (the CEO of Citibank, who became co-CEOs of Citigroup with Weill in 1998), Robinson shared some similarities with the deep-thinking Citicorp banker. Both took the reins of power in their early 40s. Both were firm believers in the transforming power of technology. Both were happy to delegate authority, preferring to conceive of grand plans and let others perform the at-times mundane efforts to carry them out. Weill, of course, shared none of these characteristics with the two biggest adversaries of his career. Luckily for him, he had to face only one at a time.

Another recent example, from the New York Times, is a description of Dr. Zvi Y. Fuks (presumably Jewish with the name Zvi), one of the doctors recently accused of insider trading in Imclone stock by Sam Waksal, the Jewish man who sent Martha Stewart to jail. The Times article said:

"Dr. Louis A. Pena, who worked with Dr. Fuks in the late 1990's, said: 'He can get aggressive; if he disagrees with you he gets two inches away from your nose and tells you so.' But Dr. Pena, now a scientist at the Brookhaven National Laboratory, also said that Dr. Fuks was smart, capable and highly respected."

There may well be some personality differences here having to do with race, religion, upbringing, or something. You have to wonder what's going on in the Pentagon between Rumsfeld (Anglo), and Wolfowitz and Feith (Jews). Looking at these other examples above, it seems likely that the Jews in the Pentagon and their Jewish neo-con allies outside the Pentagon, at the American Enterprise Institute and various other think tanks and publications, are running the show. Iraq may well be a race war in which Jews send Christian soldiers to kill Muslims. I can only say with Joseph Conrad as his boat plowed into the Heart of Darkness, or with Marlon Brando's version in Apocalypse Now, "The horror! The horror!"

Can't Let Bolton Go By

I can't let John Bolton's nomination as Ambassador to the UN go by unnoticed. Liberal Democrats were so happy when Bob Zoellick was named Deputy Secretary of State instead of Bolton. The Republicans played the public affairs angle well. Condi Rice got some credit for not being a dyed in the wool neo-con while she went to Europe to make goo-goo eyes at Chirac and company. But it was all a farce. The Bush administration showed its true colors by naming Bolton to an even more visible foreign policy job than Deputy Secretary.

I don't think it bodes well for the US. I don't think Bolton is very smart despite his two degrees from Yale. Yale has turned out some pretty poor scholars, starting with "W." However, I think the main trouble with W may be that he is lazy; he doesn't like to do his homework. Thousands died on 9/11 because he was not minding the store. Similarly, Bolton's problem is not so much that he is stupid -- he may not be -- but that he is an unquestioning ideologue. He knows what he thinks; don't confuse him with the facts.

The upshot is that Bolton has done a poor job of controlling the proliferation of weapons of mass destruction during the first four years of the Bush administration. Iraq didn't have any, but crying "Wolf!" on Iraq has undermined our credibility on dealing with more serious non-proliferation countries, such as North Korea and Iran.

Will he do any better at the UN than he did handling arms control? I doubt it, especially since he will be dealing with people and institutions that he has already insulted. He started his crusade against the UN while he was Assistant Secretary for International Organizations (the UN) during the Bush I administration. He has a long history of working against the UN as one of the main US policy makers on UN issues.

It's interesting that one of Bolton's main accomplishments cited by Condi Rice during his previous stint working on UN issues was blocking the Arab "Zionism is racism" resolution at the UN. I think there is at least a racist component to Zionism. If not, why do Israelis discriminate between Arabs and Jews? It's a commonly accepted thesis, most recently by the mayor of London. So, Bolton gets no points from me for defeating that resolution.