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REAPING THE WHIRLWIND:
DEPARTURES FROM INTERNATIONAL LAW HELPED CREATE CLIMATE FOR IRAQ PRISON ABUSES

Michael Kelly
Creighton University School of Law
JURIST Guest Columnist

The Bush Administration has consistently signaled for three and a half years that international law does not matter. The American military and civilian personnel at Abu Ghraib prison in Baghdad apparently received that signal loud and clear. Not only did they fail to follow the requirements of the Geneva Convention on Treatment of POW痴, according to the Red Cross, no copies of the treaty were to be found on-site.

The list of high-profile treaties broken or withdrawn by this government is a long one that includes denunciation of the Rome Statute creating the International Criminal Court, pulling out of the Kyoto Protocol to diminish ozone-depleting gases, and unilateral withdrawal from the Anti-Ballistic Missile Treaty over initial Russian objections. An overwhelming majority of nations condemned each of these moves as irresponsible and self-serving, but Washington paid little heed steadfastly pursuing short-term political gains instead of America痴 long-term global interests. International law was undermined and flouted.

When the invasion of Iraq became a front-burner issue, the world implored the Bush Administration not to do it, threatening everything from vetoes in the UN to political recrimination. America again disregarded the objections and went forward. The Security Council was subverted in the process and a creaky pre-World War II theory of justified pre-emptive strikes was resurrected. Again international law was cast aside.

When questions arose as to whether Geneva Convention protections would be extended to those captured in Afghanistan, President Bush dismissed the landmark 55-year-old treaty regime as a series of 斗egalisms he would consider in making his decision.

This unapologetic pattern of discounting the importance of international law helped create an environment where it could easily by disregarded by those who were supposed to follow it. That subtle message was especially potent when coupled with the specific message to extract all information possible out of detainees to help further the war on terrorism.

How can the privates and sergeants on the ground at Abu Ghraib be faulted for following the lead of their commander-in-chief? They can be faulted because they should be regarded as rational, thinking human beings the same as those they tortured. The fact that international law was simply disregarded made the process easier, but no more excusable.

America has begun to reap the whirlwind of its policy-line ignoring international law. It is held in the lowest regard foreign nations have had for it in decades, and it suffers from diminished standing worldwide. The abuses at Abu Ghraib are a particularly ugly gust of that whirlwind that has blown back in Washington's face. Re-embracing international law and the United Nations (and the unique legitimacy each can bestow) could help us weather and avoid the fury of such storms.


Michael Kelly is Associate Professor of Law of International Law at Creighton University School of Law in Omaha, Nebraska, and the co-author of Equal Justice in the Balance, Assessing America's Legal Responses to the Emerging Terrorist Threat (University of Michigan Press 2004).

May 19, 2004

GUEST COLUMNIST

JURIST Guest Columnist Michael Kelly is an Associate Professor of Law at Creighton University School of Law. Professor Kelly is co-author of the book Equal Justice in the Balance: Assessing America's Legal Responses to the Emerging Terrorist Threat (University of Michigan Press 2004). He has published articles on, among other things, reforming the United Nations Security Council, the debate over federal law governing the disposal of ancient human remains, and political downsizing. His Op-Ed Columns have appeared in the Los Angeles Times, Philadelphia Inquirer, San Diego Union Tribune, Detroit News, Chicago Sun-Times and Houston Chronicle. Professor Kelly teaches International Law, International Criminal Law, National Security Law, International Environmental Law, European Union Law, and Native American Law.

Professor Kelly holds a J.D. from Indiana University School of Law and an LL.M. from Georgetown University Law Center.