On America's Double Standard

When the United States holds Taliban detainees at Guantanamo Bay, Cuba, without Geneva Convention hearings, then decries the failure of others to accord Geneva Convention protections to their American prisoners, it supports a double standard. When George W. Bush tries to “unsign” the International Criminal Court (ICC) treaty that Bill Clinton signed in 2000, yet expects other nations to honor signed treaties, he does the same. When U.S. courts ignore an International Court of Justice decision enjoining American execution of foreign nationals, even as we demand that other countries obey international adjudications that favor American interests, the United States is using its vast power and wealth to promote a double standard. In these and other instances, the United States proposes that a different rule should apply to itself than to the rest of the world.

U.S. officials say that they must act to protect our security and to avoid unacceptable constraints on national prerogative. But to win the illusion of unfettered sovereignty, they are actually undermining America's capacity to participate in international affairs.

Over the past two centuries, the United States has become party not just to a few treaties but to a global network of closely interconnected treaties enmeshed in multiple frameworks of international institutions. Unilateral administration decisions to bend or break one treaty commitment thus rarely end the matter; rather, they usually trigger vicious cycles of treaty violation. Repeated insistence on a double standard creates the damaging impression of a United States contemptuous of both its treaty obligations and its treaty partners, even as America tries to mobilize those same partners to help it solve problems it simply cannot solve alone -- most obviously, the war against global terrorism, but also the postwar construction of Iraq, the Middle East crisis, and the renewed nuclear militarization of North Korea.

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Historically, American administrations have tended to distance and distinguish themselves from the rest of the international community; human-rights advocates have often condemned this “American exceptionalism.” But while the promotion of double standards is indeed corrosive, not all forms of exceptional American behavior are equally harmful.

America's distinctive rights culture, for example, sometimes sets it apart. Due to our particular history, some human rights, such as the norm of nondiscrimination based on race or First Amendment protections for speech and religion, have received far greater emphasis and judicial protection in the United States than in Europe. But our distinctive rights culture is not fundamentally inconsistent with universal human-rights values.

Nor is America genuinely exceptional because it sometimes uses different labels to describe synonymous concepts. When I appeared before the UN Committee Against Torture in Geneva, Switzerland, to defend the first U.S. report on U.S. compliance with the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, I was asked the reasonable question of why the United States does not “maintain a single, comprehensive collation of statistics regarding incidents of torture and cruel, inhuman or degrading treatment or punishment,” a universally understood concept. My answer, in effect, was that we applied different labels, not different standards. The myriad bureaucracies of the federal government, the 50 states, and the territories did gather statistics regarding torture and cruel, inhuman, or degrading treatment, but we called that practice different things, including “cruel and unusual punishment,” “police brutality,” “section 1983 actions,” applications of the exclusionary rule, violations of civil rights under color of state law, and the like. Refusing to accept the internationally accepted term reflected national quirkiness, somewhat akin to our continuing use of feet and inches rather than the metric system.

A third form of American exceptionalism, our penchant for non-ratification (or ratification with reservations) of international treaties, is more problematic -- but for the United States, not for the world. For example, it is a huge embarrassment that only two nations in the world -- the United States and Somalia, which until recently did not have an organized government -- have not ratified the international Convention on the Rights of the Child. But this is largely our loss. In no small part because of its promiscuous failure to ratify a convention with which it actually complies in most respects, the United States rarely gets enough credit for the large-scale moral and financial support that it actually gives to children's rights around the world.

In my view, by far the most dangerous and destructive form of American exceptionalism is the assertion of double standards. For by embracing double standards, the United States invariably ends up not on the higher rung but on the lower rung with horrid bedfellows -- for example, such countries as Iran, Nigeria, and Saudi Arabia, the only other nations that have not in practice either abolished or declared a moratorium on the imposition of the death penalty on juvenile offenders. This appearance of hypocrisy sharply weakens America's claim to lead globally through moral authority. More important, by opposing global rules in order to loosen them for our purposes, the United States can end up -- as it has done with the Geneva Conventions -- undermining the legitimacy of the rules themselves, just when we need them most.

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Double standards are the negative face of American exceptionalism. There is, however, another, much-overlooked dimension in which the United States is genuinely exceptional in international affairs: namely in its exceptional global leadership and activism. Experience teaches that when the United States leads on human rights, from Nuremberg to Kosovo, other countries follow. When the United States does not lead, often nothing happens -- or, worse yet, as in Rwanda and Bosnia, disasters occur because the United States does not get involved.

Let me illustrate with an anecdote from my childhood, the story that made me want to be a human-rights lawyer. My late father, Kwang Lim Koh, served as minister to the United States for the first democratically elected government in South Korea. In 1961, a military coup overthrew the democratic government of Prime Minister Chang Myon, who was placed under house arrest amid rumors that he would shortly be executed. To plead for Chang's life, my parents brought his teenaged son to see Walt Rostow, then the deputy national-security adviser to the president. As my father recalled, Rostow turned to the boy and told him simply, “We know where your father is. Let me assure you, he will not be harmed.”

Rostow's words stunned my father, who simply could not believe that any country could have such global power, reach, and interest. It was only after I entered the State Department that I saw that what I had thought had been exceptional behavior is, in fact, standard American diplomatic practice. Yet ironically, as I grew older, I came to realize that this canonical story was inherently double-edged. The United States was ready to intervene to save Prime Minister Chang's life, but not to take the additional steps necessary to restore democracy in South Korea. Instead, for several decades, the United States supported a military government that achieved political stability through authoritarian rule, a story that became all too familiar throughout the Cold War era.

What this taught me is that human-rights problems often arise when the United States does not exercise its exceptional leadership in human rights. If critics of American exceptionalism too often repeat, “America is the problem, America is the problem,” they will overlook the occasions where America is not the problem, it is the solution -- and if America is not the solution, there simply won't be a solution.

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Consider Afghanistan, to cite just one example. In 2002, the United States led an extraordinarily swift and successful military campaign to oust the Taliban so that a democracy could be created in Afghanistan. But what then? In Bosnia, the United States famously “went in heavy” after the Dayton Accords, supporting the entry of 60,000 NATO peacekeepers, including some 20,000 Americans. But in Afghanistan, a significantly larger geographical area, the United States has committed fewer troops to peacekeeping and called for only a small fraction of the international peacekeepers that were sent to Bosnia. The predictable result: While Hamid Karzai nominally acts as president of Afghanistan, outside of Kabul, much of the country remains under the de facto control of warlords and drug lords. Yet instead of making the additional financial commitments necessary to secure Afghanistan and promote serious nation building, the administration initially allocated zero dollars in its 2004 budget for Afghan reconstruction (until embarrassed congressional staffers finally wrote in a paltry line item of $300 million to cover the oversight). To date, U.S. and other international donors have advanced less than half the sums they originally pledged for Afghan reconstruction.

In this case, as in others, my policy prescriptions may be controversial, but my broader point should not be: American exceptionalism has both good and bad faces, and we should be aware of both. The greatest tragedy is when America's “bad exceptionalism,” its support for double standards, undermines its ability to engage in “good exceptionalism,” or exceptional human-rights leadership.

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The Bush administration's response to post–September 11 fears -- the Bush doctrine, if you will -- has been to institute sweeping strategies of law enforcement, immigration control, security detention, and governmental secrecy at home while abroad asserting a novel right under international law to force the disarmament of any country that poses a gathering threat, a right to preemptive self-defense if necessary.

Moreover, instead of declaring a state of emergency or announcing broadscale changes in the rules by which the United States had previously accepted international human-rights standards, the administration has opted for an extralegal strategy. It has sought to create both extralegal zones, most prominently at Guantanamo Bay, where scores of security detainees are held without legal recourse, and extralegal persons, particularly those detainees labeled “enemy combatants,” whom, even if American citizens on American soil, the administration has sought to accord no recognized legal avenue to assert either substantive or procedural rights.

What makes the emerging Bush doctrine so troubling is that it makes double standards -- the most virulent strain of American exceptionalism -- not just the exception but the rule. Even while asserting its own right of preemptive self-defense, the United States has properly hesitated to recognize any other country's claim to engage in forced disarmament or preemptive self-defense in the name of homeland security (think North Korea, for example). The technique of designating extralegal “rights-free” zones and individuals under U.S. jurisdiction necessarily erects a double standard within American jurisprudence, separating those people to whom America must accord rights from those it may treat effectively as human beings without human rights.

Similarly, the oxymoronic concept of “imposed democracy” authorizes top-down regime change, even though the United States has always argued that genuine democracy must flow from the will of the people, not from a military occupation.

If the emerging Bush doctrine takes hold, the United States may well emerge from the post–9-11 era still powerful but deeply committed to double standards as a means of preserving U.S. hegemony. Yet this would represent the very antithesis of America's claim, since the end of World War II, to apply universal legal and human-rights standards. The real danger of the Bush doctrine is thus that it will turn the United States, which since 1945 has been the major architect and buttress of the global system of international law and human rights, into the system's most visible outlier. This can only weaken human-rights institutions and reduce their capacity to promote universal values and protect American interests.

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Given this diagnosis, what do we do about it? My answer: We should use “transnational legal process” to press our government to put forward the best face of American exceptionalism, the activist face that promotes human rights and the rule of law.

Transnational legal process encompasses the interactions of public and private actors -- nation states, corporations, international organizations, and nongovernmental organizations -- in a variety of forums to make, interpret, enforce, and ultimately internalize rules of international law. In my view, it is the key to understanding why nations obey international law. Under this view, those seeking to create and embed certain human-rights principles into international and domestic law should trigger transnational interactions, which generate legal interpretations, which can in turn be internalized into the domestic law of even resistant nation states.

Let me illustrate my approach with the example of a system under stress after September 11: the global justice system for adjudicating international crimes. With the trial of Slobodan Milosevic, the Yugoslav tribunal faces its make-or-break case. The Rwanda tribunal has been singularly unsuccessful. For a time, the United Nations pulled out of the Cambodia tribunal, and the Sierra Leone tribunal has yet to decide any case. Academic commentators and some judges have started to challenge the rise of human-rights litigation in U.S. courts.

With the global justice system teetering, enter the Bush administration. The new administration could have chosen a strategy of support for the global justice system, or of selective engagement to encourage it in certain directions, or even of benign neglect (an approach that Colin Powell initially seemed to prefer).

But instead, the Bush administration has opted, with four decisive measures, to place itself outside the global justice system and pursue a hostile course. First, the United States announced that it would cease funding the Yugoslav and Rwanda tribunals by 2008, thus giving every defendant currently before the tribunals an incentive to stall until then. Second, the administration purported to erase President Clinton's signature of the ICC treaty. Third, the administration vetoed extension of the UN law-enforcement assistance mission in Bosnia until the UN Security Council granted a one-year exemption from ICC jurisdiction for all U.S. officials engaged in peacekeeping operations. Fourth, the United States has brought certain foreign terrorist suspects for war crimes not before the international court but before ad hoc domestic military commissions.

Yet for more than half a century, the United States has promoted international criminal adjudication as being in our long-run national interest. This policy has stemmed from a sensible prediction that, on balance, the United States is far more likely to act as a plaintiff than as a defendant before these tribunals, and thus has much more to gain than to lose from their effective functioning. Bosnia, for example, taught that indictment alone can be a valuable political tool. Although two of the leading architects of ethnic cleansing in Bosnia, Radovan Karadzic and Ratko Mladic, have not yet been brought to trial, their indictment before the Yugoslav tribunal has effectively removed them from political life, creating space for more moderate political forces to emerge.

In addition, in many cases, supporting global adjudication has served U.S. national interests by sparing us from far more costly military interventions. Our support for the Yugoslav tribunal helped the United States avoid sending troops to Belgrade to seize and oust Milosevic.

From the start, the Iraq War underscored America's shortsightedness in rejecting a permanent standing international criminal court. As the war began, both Bush and Donald Rumsfeld announced that high-ranking Iraqi war criminals, including Saddam Hussein, would be prosecuted. Yet by bringing Hussein before an Iraqi, not an international, court, they have marred his prosecution with a taint of victor's justice.

In such circumstances, how could transnational legal process help? In several ways. Those who support eventual U.S. participation in the ICC could provoke interactions between the U.S. government and the ICC with an eye toward demystifying the court's processes and gradually convincing U.S. officials that the ICC actually serves U.S. interests.

Meanwhile, human-rights groups, recognizing that the ICC is far more likely to survive if the United States sees it as helpful rather than hostile to its foreign-policy interests, could press toward the same end. ICC supporters should seek to identify cases that the new prosecutor, Luis Moreno Ocampo, could bring before the ICC as a way of illustrating both the court's responsibility and its political usefulness. By winning convictions and obtaining domestic compliance, he would also begin the process of embedding ICC decisions in the domestic law of various target nations, in the same way European Court of Human Rights rulings have now become deeply internalized in the law of member states.

In addition, transnational legal process could be used to erode the force of the novel U.S. tactic of unsigning the ICC treaty. Every act of U.S. cooperation with the ICC would constitute a de facto repudiation of the attempt to unsign. Thus, in a well-chosen case, a state party to the court could request that the United States provide evidence to support an ICC prosecution or that it extradite to the ICC a suspect located on U.S. soil. If the United States were to cooperate -- as it well might in a case that served U.S. interests -- the incident would begin to undermine the claimed unsigning.

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At the height of the Iraq War, the growing discrepancy between America's hard and soft power had become painfully clear. Even as the United States was using stunning military technology to bomb Baghdad, it could not diplomatically secure the Security Council votes of even its closest allies on a matter that the president deemed of highest national importance. Administration officials railed against egregious Iraqi violations of the Geneva Conventions, seemingly unaware that much of the world had already concluded that the United States was flouting the Geneva Conventions at Guantanamo Bay (and tragically, as we later learned, at Abu Ghraib). The president called for prosecution of Iraqi war criminals, without relenting in his opposition to the ICC. And U.S. officials, who spoke only days before about the irrelevance of the United Nations to the launching of our attack, spoke confidently about their expectation that the United Nations would nevertheless authorize the lifting of sanctions and support the massive effort necessary to clean up and build a democratic postwar Iraq.

Left unrestrained, it seems clear, a continuing impulse to adopt double standards will continue to weaken American soft power and damage the rule-of-law structures that America has helped put in place. Double standards diminish American sovereignty.

Yet at the same time, an array of institutions -- Congress, the courts, the executive bureaucracy, the media, intergovernmental organizations, and the American public, as well as foreign governments, nongovernmental organizations, and citizens -- can work together to mitigate these impulses.

As this war on terrorism wears on, a transcendent issue in the debate over U.S. foreign policy will be what kind of world order is emerging, and what America's role in it will be. After September 11, the United States no longer has the option of isolationism. Like it or not, Americans must be internationalists, but we do have a choice as to what version of internationalism we will pursue. Will it be power-based internationalism, in which the United States gets its way because of its willingness to exercise power, whatever the rules? Or will it be norm-based internationalism, in which American power derives not just from hard power but from perceived fidelity to universal values of democracy, human rights, and the rule of law?

As a nation conceived in liberty and dedicated to certain inalienable rights, the United States has strong primal impulses to respond to crisis not just with power alone but with power coupled with principle. After September 11, our challenge is to prod the country we love to follow the better angels of its national nature.

Harold Hongju Koh is the dean of Yale Law School and the Gerard C. and Bernice Latrobe Smith Professor of International Law. He served as assistant secretary of state for democracy, human rights, and labor from 1998 to 2001. This article is adapted from the foreword to Volume 55 of the Stanford Law Review, May 2003.