Ukraine, American Crimes, and Self-Determination

by Wayne McCormack – 

My Russian-born wife with relatives in the Crimea has been asking me some tough questions that deserve thoughtful and sincere answers. Unfortunately, I’m having trouble with some of the answers. Here are the major questions, which are very familiar to observers of the past several years:

How can the U.S. talk about violations of international law and national sovereignty when it invades countries at will with no plausible justification?

How can the U.S. proselytize about human rights when it engages in such actions as illegal disappearances and torture?

In essence, these questions boil down to why are there no U.S. politicians in jail, nor even any serious movement to prosecute high-level U.S. officials for war crimes or torture? The simplest answer is that President Obama announced early in his presidency that there would be no prosecution of officials who acted in good-faith reliance on legal opinions. Of course, the problem with that statement is that the legal opinions in question were so outlandish that it is difficult to give credence to a claim of “good faith” on the part of their users.

The more pragmatic answer, and one that has satisfied me for the past five years is that prosecution of Rumsfeld, Cheney, Addington, Yoo, et al. would be too politically divisive at a time when the country needed cohesion and leadership both domestically and internationally. The problem with that answer now is that we have accomplished neither cohesion nor leadership.

To be more specific about the crimes and the lack of prosecution requires exploration of some of what was done. The torture issue is the easiest to see. Many journalists have documented the abuses at both Guantanamo and Abu Ghraib. The locations and abuses of C.I.A. “black sites” are almost as well documented. Some have tried to quibble that the “enhanced interrogation techniques” were not really torture, but even if that were plausible, there is no doubt that many of the authorized practices were “cruel, inhuman, or degrading.” There is good reason why Congress passed legislation limiting future treatment of prisoners to the practices within the U.S. Army Field Manuals.

The pragmatics of prosecution for these crimes still mean that nobody above the rank of sergeant will go to jail. But it would be a great act of humanitarianism as well as justice for the President of the United States to make it clear that this country rejects the actions that were taken on its behalf, that we are not “at war with Islam,” and that steps will be taken to ensure that the U.S. lives up to its human rights rhetoric in the future. After all, it took 150 years for the U.S. to live up to the rhetoric of racial equality. If you say something often enough, eventually you believe it, and if you believe it, then eventually you act on it. That is the central theme that needs to be emphasized with American exceptionalism.

The crime of aggression may be a bit more problematic but it needs to be taken seriously. The U.S. was clearly within its rights to invade Afghanistan when the Taliban leadership refused to hand over the perpetrators of attacks on U.S. civilians and facilities. Cleaning out the terrorist training camps that we had helped establish during the Soviet occupation made perfect sense and was easily within our power to accomplish with minimal collateral damage. Whether we needed to topple the government and set up and occupation regime was quite another matter, but let’s set that aside for the more difficult issue of Iraq.

There is ample authority for the proposition that the Bush leadership were planning to invade Iraq before 9/11. Maybe they wanted to “finish the job” that Bush Sr. had held back in 1991. The three justifications offered were thin, arguably to the point of transparency: there was no likelihood that the Hussein regime was linked to alQaeda, there were no weapons of mass destruction poised as a threat, and the rationale of humanitarian intervention against a despotic regime was not widely accepted as a point of international law.

So was the invasion of Iraq a crime of aggression? It could be so argued, but there would be a significant mens rea issue: did the leadership making this decision have knowledge and culpable motivations or were they just mistaken about the threats? Some important evidence in a prosecution of this type would be not only direct evidence of what they knew beforehand, but also how they benefitted by the invasion in terms of oil or lucrative government contracts for their cronies.

Which brings me back to the question of international law and sovereignty of Ukraine. It may be technically true that Russia will have invaded Ukraine sovereignty when it sends troops into the eastern provinces. It will do so on the same grounds that the U.S. invaded Grenada – to protect its citizens in a foreign land. In the case of Crimea, there was even more justification because of the “autonomous republic” status and the people’s choice.

So what’s with all the chest-thumping and willingness of the U.S. right to send other peoples’ kids off to die in another land that means nothing to us? Just to serve some testosterone-driven tough-guy self-image that Putin already owns? The militant right needs to realize that Putin is driving his country right into bankruptcy once again. Let him go and be done with it.

But I digress into pragmatics when there is an interesting theoretical question with great pragmatic significance for other countries. Is there a valid claim of self-determination for the ethnic Russian population of Ukraine? Article 1 of both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) state: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

In a very real sense, pragmatics enter again because we have a tendency to praise popular uprisings that result in “democratic” overthrow of dictators, such as happened during the “Arab Spring” in Tunisia and Libya. But sometimes those revolutions don’t turn out so well as we are now finding with Egypt.

In addition, the self-determination language raises a very troubling issue: what is a “people?” Do French-speaking Quebecoise have a right to separation from the rest of Canada? Was the violent breakup of the former Yugoslavia justified by some principle of ethnic separatism?

Surely the world will not be a better place if every political unit of the globe is ethnically distinct from every other political unit. Not only is this a very dangerous recipe for cross-border clashes, it could destroy the diversity of the human race that is vital for free thought as well as biological strength.

The hope of the future lies in ethnic diversity, not ethnic purity. It will surely be many centuries, if ever, before we completely eliminate ethnic identity from the human DNA. But the world will be a much better place when that occurs. Meanwhile, we need to resist the idea that ethnic identity is a valid means of defining a nation-state. It may be important in the history of a region, and it may be in some instances a valid reason for allowing separation when the dominant part of a nation agrees that it would be better for a region to separate. But using ethnicity as the defining characteristic of a nation is a dangerous proposition.

To summarize:

  1. No American politician will go to jail for crimes committed in the “war on terrorism” or invasion of Iraq because it is just impossible to prosecute.
  2. The President should openly admit that crimes were committed by the U.S. and that we stand by our creed of human rights.
  3. Trying to out-tough a tough guy just plays into his hands – let him blunder his way through a period of dictatorship and see where his country lands.
  4.   Ethnicity is a very poor formula for defining a nation.