An important global dynamic today that bridges the worlds of politics, morality and violence sees assorted societies grappling with the challenge of how to hold accountable political leaders who are accused of various degrees of criminal behavior, including war crimes, torture, genocide or crimes against humanity. The most outrageous cases are being tried in special international tribunals or the International Criminal Court. Others reflect more contested situations that raise critical issues of the universality of ethics and law.
Two cases last week in the United States and Israel were particularly interesting in this respect, because these two countries remind us twice a week – and more often in war time or on patriotic national holidays – that they are democracies whose values should be spread around the world. Well, the world at the receiving end of their moral munificence increasingly asks an important question to which it has yet to receive a clear answer: Are the US and Israel subject to the same standards of accountability for their behavior as everyone else in the world, or do they operate on a higher plane of impunity when it comes to using violence to kill, torture, invade or occupy other people?
The relevant Israeli case this week saw Kadima Party leader Tzipi Livni cancel a trip to London because an arrest warrant had been issued for her by pro-Palestinian activists. They accused her of war crimes and crimes against humanity for her alleged role during Israel’s military assault on Gaza almost one year ago, when she was foreign minister. They want her to stand trial on charges that her decisions led to the deaths of over 750 Palestinian civilians.
Livni’s cancellation follows a similar case two months ago, when Deputy Prime Minister Moshe Ya’alon did not travel to London on the advice of legal experts in his government, who warned him that he could possibly find himself arrested and put on trial for his part in a 2002 Israeli bombing raid against Gaza that killed 15 people (when he was armed forces chief of staff). Some Palestinians petitioned a court in London in September to arrest Israeli Defense Minister Ehud Barak for his role in the Gaza war, but that court decided that Barak enjoyed diplomatic immunity.
The fact that senior Israeli officials think twice about travelling abroad for fear of being indicted on war crimes charges is a positive development – if they are given a fair trial, and if the same standards of criminal culpability are used to assess the behavior of leaders in all other countries.
In the United States, courts similarly are weighing whether officials can or should be held accountable for their actions during the George W. Bush administration in the cases of alleged torture and mistreatment of prisoners the US captured during the “global war on terror.” The US Circuit Court of Appeals in San Francisco this week considered a case claiming that five victims of “extraordinary rendition” and torture were criminally mistreated. The court will decide whether to allow a full trial to take place, or accept the Bush and Obama administrations’ arguments that the executive branch can stop any such legal cases on the basis of “national security” concerns.
Critics of the US government’s behavior argue that the courts are the last resort to limiting or ending the government’s use of kidnapping, secret detention, abuse and torture to address national security issues. Accountability, they argue, not impunity, is the appropriate response in this case. Various court levels in the US offer slightly different responses. The Supreme Court seemed to support the government last week when it let stand a federal appeals court ruling that had dismissed a lawsuit by four British citizens at the Guantanamo Bay prison who accused the US government of wrongly arresting, detaining and mistreating them.
This line of thinking suggests that “enhanced interrogation techniques” can be used when the government feels the need to do so in the battle against terrorism. The charges accused the US government of using procedures like prolonged sleep and food deprivation, maintaining prisoners in stress positions, sexual humiliation, death threats, simulated drowning (water-boarding), repeated beatings, imposing extremes of hot and cold, forced nakedness, interrogations at gun point, menacing detainees with unmuzzled dogs, and engaging in religious and racial harassment – actions that have been clearly documented in congressional reports and Justice Department memos. The issue is whether they are acceptable behavior, or criminal actions for which the officials who ordered them should be held accountable.
If strong, aggressive military powers like the US and Israel remain above the law, then the law becomes meaningless for everyone else. Holding the US and Israel accountable like everyone else, according to a single, equitable standard of justice and behavior, is the best way to spread the democratic values they otherwise disdain when they claim to be immune from such accountability.
Rami G. Khouri is published twice-weekly by THE DAILY STAR.
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