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U.S. Exceptionalism Regarding Human Rights and Humanitarian Norms
Summary of Remarks

The development of legal standards is important to the protection of groups in particular States, as well as the development of globally agreed-upon human rights standards. While the U.S. has a history of leading the international call for humanitarian norms and human rights, the government exempts itself from the international standards and treaties that result. This is true not only of the Bush administration, but across all party lines.  Furthermore, it has long been occurring at increasingly aggressive levels.  This exemption has become the U.S. government's approach to international law.  What was once a more benign exceptionalism has recently become aggressive and hostile. The U.S. is taking strong diplomatic actions to preserve the U.S. position as the sole superpower that is not subject to international treaties or conventions. This approach is undermining international human rights in that other countries are justifying their own violations because of the standards that the U.S. is contesting.

When the U.S. does ratify a treaty, it does so with such imposed limitations as to render it almost useless to legal interpretation and practice by lawyers in U.S. courts. The U.S. uses reservations to interpret principles through current U.S. law, the Constitution, and amendments.  In order to ratify a treaty, the U.S. nullifies its significance and application.  In doing so, it undercuts international norms while protecting U.S. leaders through watered-down obligations.

Frey used three examples to support this thesis: the campaign to ban land mines in 1997, the establishment of the International Criminal Court in 1998, and the U.N. Conference on Small Arms and Light Weapons.

Landmine Ban 1997

In the early 1990s, two thousand people are killed each month by land mines, primarily in Southern and Southeast Asia, the Middle East, and Africa.  Many are anti-personnel landmines that cannot differentiate between armed forces and civilians. Many mines have been and are placed in otherwise arable lands, decreasing large tracts of land that could be otherwise used.

In 1991, the U.S. was at the forefront of humanitarian efforts to discontinue landmine use.  It banned the export of land mines from the U.S. and pushed legislation worldwide to ban the export, stockpiling and use of landmines. However, the U.S. began to withdraw from its position when the international community began supporting an international treaty banning landmines. In 1996, the Canadian government hosted an international conference to discuss the discontinued use, export, and production of landmines. At the closing, the Prime Minister unexpectedly called for an international treaty. The U.S. retreated on its position calling for the U.N. as the future forum to take up the issue on an international scale and failed to stay in negotiations. Meanwhile, the Oslo Treaty banning anti-personnel landmines was drafted and the U.S. became one of 40 non-signatories along with countries such as Iraq, Libya, Israel, China, and Syria. The U.S. became part of the problem by not signing the Oslo Treaty. Senator Patrick Leahy of Vermont was a treaty proponent.

The Clinton Administration vowed to find alternatives to APLs by 2006, so that the US could sign the Mine Ban Treaty.  The Bush Administration however has abandoned the effort to find alternatives and has indicated that it will not join the international consensus on banning mines.

International Criminal Court 1998

The ICC statute was adopted at the Rome Conference in 1998 and came into force in 2002. Its purpose is to prosecute the worst crimes, including genocide, crimes against humanity and war crimes.  Practically, the Court results in pressure on states to prosecute nationals who commit crimes against humanity, as opposed to the ICC actually prosecuting all such crimes (it is too small to prosecute many cases). The U.S. led the international community in the proposition of the concept of the ICC, but once the U.S. government discovered that the ICC would become an international entity outside of their direct control, the government became critical of the statute and voted against it.

The U.S. opposes the idea of independent prosecutorial control for crimes outlined by the ICC because it could result in the investigation or indictment of U.S. nationals. Under the Clinton administration, when the international community put forth the Rome Statute, the U.S. government tried to limit the Statute's prosecutorial powers. Initially, the U.S. did not vote to pass the Rome Statute and again found itself in company with China, Iraq, Yemen, Libya, and Israel. Ultimately, the U.S. signed the Rome Statute in order to stay in negotiations regarding the ICC and not face exclusion while the rest of the international community continued to negotiate rules regarding the elements of crimes and the procedures of the Court.

While Clinton was critical of the Statute, Bush became aggressive in opposition to the Court and nullified the US signature of the ICC. Under Bush, the U.S. government set up bilateral agreements that exempt prosecution of all U.S. officials and American Service personnel by the ICC. The American Service Members Protection Act grants impunity for all U.S. personnel in U.N.-sanctioned missions and authorizes sanctions against other governments that cooperate with the Court. This aggressive, exclusive, and costly advocacy against the ICC and the Protection Act was spearheaded by a committee led by John Bolton, George W. Bush's Undersecretary of State for arms control and international security.

Ironically, when the U.S. drew up Iraqi prosecutorial council provisions for the ICC against Saddam Hussein, the language was lifted word-for-word from the ICC Statute. In other words, what is not good enough for the U.S. appears to be perfect for Iraq.

U.N. Conference on Small Arms and Light Weapons 2001

There are over 500,000 deaths per year due to small arms and light weapons - more deaths than due to any weapon of mass destruction. These weapons are directly interlinked with human rights abuses and have hampered the progress of developing countries.  In 1990, Mali called upon the U.N. to assist with halting the proliferation of small arms in its country in order to reduce security threats to national sovereignty. In 2001, the U.N. held a conference in New York City to discuss measures to be taken to reduce small arms and light weapons proliferation, including marking the weapons to track them, exporting criteria, policies of transparency in the manufacture ad stockpile of small arms and the disbandment of brokers who redirect small arms across state lines.  Following this conference, the U.S. drew red lines on several issues upon which it refused to negotiate. The U.S. government - once again with strong advocacy by John Bolton - opposed any measures to control small arms proliferation that might be interpreted as interfering with the so-called U.S. Constitutional right to bear arms.

In closing, where once it was more benign in its policies and disregard for international humanitarian norms, the U.S. is now aggressively adopting a stance of exceptionalism at the expense of human rights around the world. It does so without regard for the long-term consequences of these self-controlling policies. The U.S. government selectively uses international law to its advantage. For instance, in regard to the Geneva Conventions, the Guantanamo Bay detainees are deemed non-POWs while Saddam Hussein is a POW. Surely, such a record can only come back to haunt us.

Barbara A. Frey is Director of the Human Rights Program in the College of Liberal Arts at the University of Minnesota.  Frey was elected in 2000 as an alternate member of the U.N. Sub-Commission on the Promotion and Protection of Human Rights, a body of independent experts who advise the United Nations on human rights policy. In 2002, Frey was appointed by the Sub-Commission to conduct a three-year study on the issue of preventing human rights abuses committed with small arms and light weapons. Frey served from 1985 through 1996 as Executive Director of Minnesota Advocates for Human Rights. Frey has been teaching international human rights at the University of Minnesota in both the Law School and the Institute for Global Studies since 1989.  She is the immediate Past Chair of the St. Paul-Minneapolis Committee on Foreign Relations, and a member of the Board of Directors of Minnesota Advocates for Human Rights.  Frey is a 1982 graduate of the University of Wisconsin Law School.  She received a B.A. from the University of Notre Dame in 1978 and worked as an associate lawyer at Dorsey & Whitney in Minneapolis from 1983-85.