Ending NATO's Double Standard on International Justice

The West puts others on trial for war crimes, the argument goes, while exempting its own forces from scrutiny.

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A man wearing a mask of Syrian President Bashar al-Assad demonstrates against Assad in front of the International Criminal Court (ICC) offices in The Hague, June 7, 2011. (Reuters)

This weekend in Chicago, President Obama will gather with more than 60 heads of state to hold NATO's 25th anniversary summit. He and other leaders will convene as a Western-created system of international justice - enforced in many places by NATO - has grown stronger, and raised expectations of accountability around the world.

This week, Bosnian Serb general Ratko Mladic finally went on trial in The Hague for war crimes in Bosnia after evading justice for 17 years. Last month, former Liberian President Charles Taylor was convicted of aiding and abetting war crimes by a separate international court. And in a surprising example of the spreading expectation of international justice, protests among the Syrian diaspora have included signs demanding Bashar al-Assad be sent to The Hague.

At the same time, as people around the globe see war criminals brought to justice, they want to see the world's most powerful armies held accountable as well. Outside the U.S. and Europe, there is a growing sense of a two-tiered system of international justice. The West puts others on trial for war crimes, the argument goes, while exempting its own forces from scrutiny.

"There is a contradiction," said Richard Dicker, the head of Human Rights Watch's International Justice Program. "As the reach of justice extends further and as expectations of justice increase, the shortcoming in the uneven landscape - the uneven application of law to all - becomes more stark."

Some of the perceptions are exaggerated. The U.S. and NATO are not evil incarnate, nor are they perfect. A recent examination by Human Rights Watch, for example, found that the seven-month NATO bombing campaign in Libya killed at least 72 civilians but that the alliance took major steps to try to avoid such casualties. Taylor and Mladic, meanwhile, went out of their way to kill civilians.

The belief that there is a double standard, though, is visceral outside NATO. In conversations with me over the last several years, everyone from Chinese intellectuals to Bosnian Serb civilians to Taliban fighters have passionately believed that the West's crimes are far worse than those of the people hauled before international tribunals.

Hina Shamsi, the director of the American Civil Liberties Union's National Security Project, said America's actions as it targets suspected terrorists around the world undermine its role in bringing fugitives like Taylor and Mladic to justice.

"The U.S.'s use of drones, targeted killings and indefinite detention is actually destabilizing the international system of law it helped to create," she said.

One hundred and twenty-one states have signed and ratified the treaty that created the International Criminal Court in 2002 and agreed that their citizens can be tried there for war crimes. The world's three most militarily powerful nations - the United States, China and Russia - have declined to join the treaty, depriving the new, Hague-based court of binding jurisdiction over their citizens. As a result, in most cases it would take the passage of U.N. Security Council resolution for an American, Chinese or Russian to be tried by the International Criminal Court. Considering the Security Council vetoes that the U.S., Russia, and China enjoy, that will likely never happen.

The system plays out unevenly in other ways. Moscow's veto protects those close to it, such as Syrian President Assad. China's veto, for example, protects North Korea's autocratic regime. And critics of Israel say America's veto does the same for Israeli transgressions.

"The most powerful states - among whom there are great distinctions in commitment to the rule of law - nonetheless hold themselves at a distance or beyond these international justice standards," Dicker said, "creating the perception - and the reality - of hypocrisy and a double standard. And that needs to change."

In some ways, there is a double standard. To be blunt, Taylor and Mladic are comparatively easy pickings. International pariahs with no powerful allies, their arrests and convictions cost U.S. and NATO leaders little political capital.

Still, their presence in the dock is a positive step that creates a sense of justice for victims. Their convictions and the creation of the International Criminal Court may deter future war crimes, and should be hailed.

But at the same time there is a widespread belief that American, NATO and Israeli forces do not face the same level of accountability. And some elements of the so-called war on terror do skirt international law. The Obama administration stopped some of the Bush administration's worst practices but has embraced others.

The U.S. should join the International Criminal Court, as nearly all of its NATO partners have. It should end over a decade of indefinite detention without trial in Guantanamo Bay. American drone strikes should be carried out by the U.S. military, be publicly announced, and no longer be covert operations run by the CIA. And when reports of drones killing civilians emerge, they should be investigated, with compensation paid to the victims - as the laws of war require.

But American drone strikes in Pakistan are not as indiscriminate as the Russian army's shelling of Grozny. The profiling of American Muslims by the New York City Police Department was shameful, but it is not as pervasive as the Chinese government's harassment of Uighirs. I am not justifying the excesses of America, particularly post-9/11. Our offenses are inexcusable, must end and only reinforce our rivals' conspiracy theories.

An example of how the conduct of war has skirted, distorted and outpaced the laws of war emerged in Idaho this week. After maintaining a yearlong silence, the family of Sgt. Bowe Bergdahl - the only American soldier in Taliban captivity - gave a series of interviews to the American news media.

The Bergdahls called on the Obama administration to move ahead with peace talks that could involve the exchange of five Taliban prisoners currently in Guantanamo Bay for their son, who has been held captive in a Taliban safe haven in Pakistan's tribal areas for nearly three years. Legally, the Taliban detainees are not prisoners of war. Nor is Bergdahl. They both exist in an undefined legal - and political - "war on terror" gray area.

(I've talked to the Bergdahls intermittently as they have struggled with what to do. They hoped that my seven-month kidnapping by the Taliban in 2008-2009 might have given me some answers. Unfortunately, I had none for them.)

After the Bergdahls went public, administration officials said they were open to continued negotiations. But it's clear there's little chance of a deal during a U.S. presidential election campaign season. Peace negotiations with the Taliban - or a prisoner exchange - will be assailed by Republicans as appeasing terrorists.

I am not arguing that more closely abiding by international law will somehow make militants no longer hate the United States. Some of them can only be countered with lethal force. But closely following the laws of war is in our strategic interest. It undermines those who accuse the U.S. of hypocrisy and helps win the support of those who hold the same ideals.

The best course for the United States - and its NATO allies - is to pledge this weekend in Chicago to more strictly abide by the laws of war they have created.

President Obama and other leaders who ignore the perception of a double standard do so at their peril. The U.S. and NATO should ally themselves with the laws of war. They should not allow those standards to become their enemy.

This post originally appeared at Reuters.com, an Atlantic partner site.