The Judicial Double Standard in America

America, Home of the Double Standard? | HuffPost

This can only weaken human-rights institutions and reduce their capacity to promote universal values and protect American interests. Given this diagnosis, what do we do about it? 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 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.

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 , thus giving every defendant currently before the tribunals an incentive to stall until then.

Double Standards in United States’ Human Rights Practices

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. 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.

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In such circumstances, how could transnational legal process help? Those who support eventual U. 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.

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In addition, transnational legal process could be used to erode the force of the novel U. Every act of U. 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. If the United States were to cooperate -- as it well might in a case that served U.

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. 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. 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.

America, Home of the Double Standard?

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.

He served as assistant secretary of state for democracy, human rights, and labor from to Skip to main content. Home Magazine Blogs Tapped: RSS feed of articles by Harold Koh. Public-shaming would be in order and heartfelt apologies would be made. MTV might even enact anti-bias trainings as a corrective. The progressive response to this question invariably contains some reference to history: In the face of such a brutal past, many would argue, it is simply ignorant to complain about what modern-day blacks can get away with.

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And my white Hispanic friend who could have had a tougher life than all of us, for all I know paid the price. The underlying logic of using the past to justify racial double-standards in the present is rarely interrogated. What do slavery and Jim Crow have to do with modern-day blacks, who experienced neither? Do all black people have P. D from racism, as the Grammy and Emmy award-winning artist Donald Glover recently claimed?

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Is ancestral suffering actually transmitted to descendants? Hughes goes on to lament the double standard the public applies to famous black writers. The celebrated journalist Ta-Nehisi Coates provides another example of the lower ethical standard to which black writers are held. In his recent essay collection, he doubled down on this pitiless sentiment: I had no sympathy for the firefighters, and something bordering on hatred for the police officers who had died. From a white writer, an innocuous tweet provokes histrionic invective.

But we make an exception for blacks. Indeed, what George Orwell wrote in seems more apt today: An identical piece with the races reversed would rightly be relegated to fringe white supremacist forums. Progressives ought not dodge the question: Why are blacks the only ethnic group routinely and openly encouraged to nurse stale grievances back to life?

Read the whole thing. Hughes is a black undergraduate at an Ivy League university, yet he has no been afraid to say what has been unsayable.