International Law by Jules Lobel and Michael Ratner,
Foreign Economic Policy by Mark Weisbrot

excerpted from the book

Power Trip

U.S. Unilateralism and Global Strategy After September 11

edited by John Feffer

Seven Stories Press, 2003, paper

International Law
by Jules Lobel and Michael Ratner

p75
... while State Department officials often argue that the administration is pursuing a multilateral foreign policy and point to their many diplomatic initiatives, the Bush administration's post-September 11 policy has thus far been characterized by its refusal to be bound by the restraining norms of international law-a refusal that strikes at the heart of multilateralism. The administration's policy has been termed "a la carte multilateralism," which means we pick and choose when we want to act multilaterally and act unilaterally when it suits our interests. This conception is at fundamental odds with the whole premise of the rule of law.

p76
SHREDDING THE UN CHARTER'S PROHIBITION ON THE USE OF FORCE

The Bush administration has decided to openly challenge the UN Charter. The Charter's core principle, contained in Article 2(4) and Article 51, proscribes one nation from attacking another except in self-defense. In a speech to the graduating class at West Point in June 2002, Bush set forth a doctrine that repudiated this critical legal principle. Building on his State of the Union address, in which he warned the "axis of evil" nations that the United States would not wait "while dangers gather," he articulated a doctrine of preemptive strikes. This radically new approach proclaims that the United States can use military force against any state it perceives to be hostile, or that seeks to acquire biological, chemical or nuclear weapons, or is viewed as aiding terrorism.

This new U.S. position, obviously aimed at justifying an attack on Iraq, is a public renunciation of the UN Charter's norm that force not be used except in response to an attack by another nation. Although both the Soviet Union and the United States invaded countries during the forty-year Cold War to further perceived national interest-the Soviet interventions in Hungary, Czechoslovakia, and Afghanistan; and the U.S. military incursions into Cuba, the Dominican Republic, Nicaragua, Grenada, Libya, and Panama-both superpowers maintained a formal fealty to the Charter's proscription on the use of force except in self-defense. The United States traditionally sought to avoid sweeping justifications for its attacks on other countries that would have essentially eviscerated the Charter's norm. Instead, past administrations sought to expand the self-defense exception, stretching its parameters to the breaking point to justify what seemed clearly illegal, but not obliterating its core.

Preemptive strikes should be distinguished from an earlier doctrine that was labeled "anticipatory self-defense" under which the United States and some other countries argued that they had the right under the UN Charter to attack a country that was planning an attack. This latter doctrine at least gave lip service to the restrictions on the use of force embodied in the Charter-that force could only be used in self-defense or as authorized by the Security Council under Article 51. The new doctrine of preemptive strikes moves beyond the restrictions of the Charter by stating that force will be used even if there is no immediate threat. Past administrations publicly viewed preemptive strikes on other nations as illegal. Even the Reagan administration joined the Security Council in unanimously condemning Israel's attack on Iraq's nuclear facility in 1981. Only after the Cold War's demise did the Clinton administration come close to breaking with the Charter's norms when NATO attacked Yugoslavia in response to the Kosovo crisis. In this case, however, the United States declined to put forth a new doctrine of humanitarian military interventions, choosing to characterize Kosovo as an exceptional emergency. The new Bush doctrine may well take the world back to a period prior to World War I when the employment of force had no legal restraints; countries could use force when and where they wanted.

As a candidate, Bush spoke of "humility" in defining America's role in the world. Now, articulating a more imperial vision than any prior president dared publicly articulate, the administration proposes abandoning the UN Charter's core legal restraint in favor of a system in which the United States unilaterally decides which regimes warrant replacement by force. The consequences of this new doctrine are frightening. Once the United States so publicly undermines the Charter, what will prevent other nations from preemptively striking their enemies when they perceive such an attack to be in their national interest? This new assertion of the right to use force, contrary to the UN Charter, is the most dangerous and serious of the Bush administration's dismissal of the international legal framework.

SCUTTLING THE INTERNATIONAL CRIMINAL COURT

Another area that illustrates the Bush administration's disrespect for international agreements and its unilateral approach to foreign policy is the decision to renounce the Rome Treaty establishing the ICC. The Nuremberg trials after World War II set in motion efforts by progressive nations and nongovernmental organizations to establish an international criminal court to hold accountable individuals who commit genocide, war crimes, or crimes against humanity. These efforts finally succeeded in the Rome Conference in 1998, which, according to Article 5 of the ICC Statute, established a court to try "the most serious crimes of concern to the international community as a whole."

The Clinton administration's attitude to the establishment of the Court was mixed. The United States had backed ad hoc international tribunals to try war crimes committed in the former Yugoslavia and Rwanda. In 1995 it generally supported the idea of a permanent court. However, the Clinton administration sought to ensure that no American would ever be tried by such a court without the consent of the U.S. government. The United States argued that its unique role in the world required that protections be accorded to American soldiers. It proposed that only the Security Council refer cases to the Court, a proposal ensuring that the U.S. veto on the Security Council could block any prosecution of American soldiers or civilians. The overwhelming majority of states at the Rome Conference rejected this proposal.

The Clinton administration was dissatisfied with the compromises that eventually were adopted at the Rome Conference. For example, the final treaty allows the Security Council to delay a prosecution by a vote of nine of its fifteen members, but did not give the United States a veto over such prosecutions. Nonetheless, Clinton signed the treaty on December 31, 2000 with the expectation that modifications would be negotiated before submission of the treaty to the Senate for ratification.

The Bush administration backed away from the Clinton policy of continuing to negotiate within the treaty's framework. Instead, on May 6, 2002, the administration took the more radical step of announcing that it would unsign the Rome Treaty. Using the anti-terrorism specter to justify this radical step, Secretary of Defense Donald Rumsfeld stated that "there is a risk that the ICC could attempt to assert jurisdiction over U.S. service members, as well as civilians, involved in counterterrorist and other military operations- something we cannot allow." Despite U.S. objections, eighty-seven countries, including most of our European allies, had by January 2003 ratified the treaty, and the Court is in the process of being established.

Of course, the ICC would be a good way to bring terrorists to justice. Had it been in existence at the time, the Court could have handled the alleged perpetrators of the September 11 attacks, including Osama bin Laden. Perhaps the war with Afghanistan would have been avoided. The international community would have considered trials before the ICC as fairer than trials in U.S. courts, particularly trials before military commissions. By attempting to scuttle the Court, the United States is removing an important deterrent to terrorism.

In spring 2002, the United States threatened to veto UN peacekeeping missions unless U.S. troops in those missions were accorded absolute immunity from prosecution by the ICC. The fifteen members of the European Union and most other countries of the world opposed U.S. efforts to undermine the basic principles of the ICC. As the Canadian ambassador to the UN Paul Heinbecker stated, "Fundamental principles of international law and the place of those principles in the conduct of global affairs are in question." Eventually, a temporary Security Council compromise providing American troops in those missions a one-year immunity was worked out, a vote that the Canadian ambassador called "a sad day for the UN."

The United States is using an additional tactic: it is asking signatories to the treaty to sign separate agreements certifying that they will not extradite Americans for trial before the ICC. A commission of the European Union considers such bilateral agreements illegal and against the object and purpose of the ICC treaty. By January 2003, seventeen countries-including Romania, Israel, India, East Timor, and Tajikistan-had signed such special treaties to ensure an unrestricted flow of U.S. military assistance. In addition, the Bush administration has served notice that the U.S. role in NATO will change unless European countries agree not to extradite Americans.

DISREGARDING THE GENEVA CONVENTIONS

While the UN Charter sets forth a framework to preserve international peace, the Geneva Conventions provide protections to combatants, civilians, the wounded, and prisoners of war (POWs) once war breaks out. The U.S. treatment of prisoners captured during the war in Afghanistan openly violates the Geneva Conventions and is raising concerns throughout the world. The United States has refused to give any of those captured in Afghanistan the rights to which prisoners of war are entitled. Instead, it has imprisoned over five hundred people from some thirty-three countries in a prison at a U.S. military base in Guantanamo Bay, Cuba. It has charged none of these persons with a crime, claims the right to keep them imprisoned indefinitely, and is arguing, so far successfully, that no court can review the imprisonments. It is refusing to allow these prisoners access to their families or lawyers.

Under the Geneva Conventions, captured combatants are entitled to treatment as POWs; if there is any doubt with regard to that status, they are entitled to a hearing before a competent tribunal, as mandated by the Third Geneva Convention. According to the International Committee of the Red Cross, which monitors the Geneva Conventions, such tribunals should have been held for all Guantanamo combatants not considered POWs. The Inter-American Commission on Human Rights of the Organization of American States recently upheld the principle that a tribunal or court determines the status and rights of the Guantanamo detainees. On March 13, 2002, the Commission, concerned that petitioners were "entirely at the unfettered discretion of the United States government," asked the United States "to take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal." The United States, in violation of international law, refused to take such measures.

But the question goes far beyond the treatment of individual detainees at Guantanamo. Rather, it sets the stage for how, in a violent world, the rules of war are established for everyone. The United States has always argued for a broad reading of the Geneva and Hague Conventions regarding POWs, both to set an example and to ensure fair treatment of its own soldiers when captured. The United States has an immediate and long-term interest in upholding international conventions that establish universal rules of war and regulate the treatment of POWs. Our own soldiers live under the threat of capture and deserve the protection of the Geneva Conventions. The United States also has an interest in not alienating its battlefield allies with high-handed, unilateral decision making and selective compliance with the law. If the rules of war can be abrogated at any moment on the whim of the secretary of defense, our ability to form solid and lasting alliances will be gravely undercut.

AN END TO MULTILATERAL TREATIES

The Clinton administration had a mixed record with regard to treaty signing and ratification. Clinton did sign the ICC treaty as well as the Comprehensive Test Ban Treaty (CTBT), but the Senate never voted on the former and rejected the latter. The administration refused to sign or take to the Senate for ratification the treaty banning the production and use of antipersonnel mines. However, it did plan to eliminate antipersonnel mines by 2003 except in Korea, and, if alternatives were found, it planned to eliminate all land mines by 2006 (by mid-2002, this commitment as well was in doubt as the Bush administration reviewed its landmine policy). In 1998, the Clinton administration signed the Kyoto agreement that would have mandated reductions in "greenhouse gases" that contribute to global warming, but the Senate never ratified the treaty. Thus, while the Clinton administration was not exactly receptive to a number of treaties and showed signs of unilateral superpowerism, it signed a number of them, indicating it would not take actions hostile to the goals and aims of the treaties and in the hope of continuing to negotiate for better terms. By signing, it was at least giving a nod to multilateral solutions to international problems.

The Bush administration has taken a far more unilateral and hostile attitude to multilateral treaties, international institutions, and even global meetings such as the World Conference Against Racism and the World Food Summit. It has taken off its gloves and does not even pretend to engage in multilateralism; it is engaging in a naked exercise of power. The administration rejected the 1997 Kyoto Protocol, calling it "fatally flawed" and not in the "economic interest" of the United States. While the European Union has recently completed ratification of the treaty, the United States has announced that it will not even consider the multilateral climate treaty for at least ten years and will not participate in treaty talks scheduled for 2005 to reduce those gases. The United States, the greatest producer of greenhouse gases, will not reduce its levels under Bush's unilateral plan. In addition, the U.S. refusal will encourage other countries to do likewise in order to compete with the United States without restrictions on their own emissions.

The Bush administration has announced its opposition to the CTBT, which was ratified by all of our NATO allies and by Russia, but rejected by the Senate in 1999. This treaty mandates negotiations that would ultimately lead to nuclear disarmament. The administration will not resubmit the treaty to the Senate, thus seriously jeopardizing nuclear disarmament not only by the United States, but by other states as well. In December 2001 the Bush administration gave Russia the required six-month notice that it was abrogating the Anti-Ballistic Missile Treaty in order to develop its "Star Wars" missile defense system. The abrogation of the treaty was not authorized under its terms-there were no extraordinary events that jeopardized U.S. interests. In addition, there is a serious question whether Bush could abrogate the treaty without the consent of Congress. This is the first time a major power has withdrawn from a nuclear arms control treaty. When coupled with the Bush position on the CTBT it is indeed ominous-we may well be entering a period of escalation in the nuclear arms race with all of the danger that entails.

In November 2001 the administration abruptly killed a many-year effort to negotiate a verification protocol that would have given teeth to the Biological Weapons Convention. The move reflected the Bush administration's deep suspicion of multilateral arms agreements, and the administration argued that it was pointless to negotiate with governments aggressively seeking biological weapons. Defense officials and the U.S. biotech industry had long opposed opening their own labs to international inspection. As one UK official said, "[T]he failure of the international community to agree to a protocol on biological weapons is a disaster."

Foreign Economic Policy
by Mark Weisbrot

p86
CREDITORS' CARTEL

To understand both the continuity and the minor change requires an examination in detail of the institutions through which the United States exercises control over developing countries and shapes the framework in which international commerce takes place. These institutions are, in order of power and importance, the International Monetary Fund (IMF), the World Bank, and the World Trade Organization (WTO). These are ostensibly multilateral institutions, but it is well known that the IMF is primarily controlled by the U.S. Treasury Department. The World Bank is subordinate to the IMF, and most other lenders-including the governments of the major industrialized powers and even much of the private sector-defer to the IMF's judgment.

This creditors' cartel, in conjunction with what Columbia economist Jagdish Bhagwati has called the "Wall Street-Treasury complex," confronts most low- and middle-income countries with enormous power. It is analogous to the power that the Oil Producing and Exporting Countries (OPEC) have over oil. OPEC uses its cartel to control, as much as possible, the price of oil; the IMF/Treasury uses the creditors' cartel not to control the price of credit, but to decade the economic (and sometimes political) policies of borrowing countries.

In other words, the IMF is able to tell most governments that if they do not adopt its policies, then they will not get credit from most other sources. This is the most concentrated power in the world, greater in its efficacy than the might of the U.S. military. Very few governments of low- and middle-income countries are strong enough (politically or economically) to stand up to this kind of power. As a result, the United States only rarely needs to use force or the threat of force, because it is able to impose its agenda by means of this cartel.

... In some cases the cartel acts as a debt collector for the major banks and financial institutions. During the Asian financial crisis, for instance, the IMF persuaded the government of South Korea to guarantee billions of dollars of bad loans made by foreign banks. More destructive, the cartel pursues policies that even the multinational banks and corporations could not by themselves enforce or be interested in enforcing, including high interest rates that strangle economic growth, inappropriate exchange rate regimes (as in Russia and Brazil in 1998-99, and Argentina until 2001), and fiscal austerity even in the face of recession or depression. Over the last twenty years, the replacement of country specific industrial or agricultural policies with a simple formula of opening up the domestic economy to international trade and capital flows has precluded most of the developing world from catching up, as South Korea and Taiwan have done, with the living standards of more developed countries.

... in countries in which poverty has increased or where progress in reducing poverty has slowed, the major cause has been the slowdown in economic growth, rather than changes in distribution of income or wealth. In the last twenty years, growth in all the low- and middle-income countries combined has been about half of its rate during the previous two decades (1960-1980).

... During the l990s, Treasury Secretaries Robert Rubin and (especially) Larry Summers of the Clinton administration were aggressive advocates for the IMF and for using its power to break open foreign markets for both capital and goods. In so doing they caused enormous economic destruction. For example, the Asian financial crisis was mainly brought on by the removal of restrictions on portfolio investment, at Treasury's urging, which led in 1996 to a reversal of capital flows of $105 billion (11 percent of the GDP of South Korea, Thailand, Indonesia, Malaysia, and the Philippines). In the wake of the crisis, the IMF conditioned their loans on the removal of restrictions on foreign direct investment into, what had been protected national markets."

p90
In Argentina, the creditors' cartel has been quite brutal, dragging out negotiations for a loan agreement for more than eight months since the default in December 2001, moving the goalposts as the government has caved in to one politically unpopular (and often economically harmful) demand after another. It is not clear whether, as George Soros has suggested, the Fund is seeking to punish Argentina for the largest default on public debt ($141 billion) in history, so as to discourage other defaults, or whether the failure to reach an agreement is a result of conflicts among IMF, U.S. Treasury, and White House decision makers. Nevertheless the prolonged negotiations, during which the government has been unable to adopt any economic stimulus program, have inflicted considerable damage on Argentina, whose economic collapse is very clearly a result of failed policies that received tens of billions of dollars worth of support from Washington. Any new loans would go to pay existing official creditors, and the conditions attached to them (e.g., fiscal and monetary austerity) would prolong and/or worsen the country's severe economic depression.

p92
Most of the countries that have gotten debt relief through the Heavily Indebted Poor Countries (HIPC) Initiative launched in 1996 are still paying more for debt service than for health care and education and are plagued by harmful conditions attached to the debt relief.

Power Trip

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