Thursday, January 13, 2005

Accountability and First Principles

I am enjoying this discussion, not the least because it reveals some of the fundamentally different views of the law, and perhaps the world between Chris and myself.

Chris makes a move that I've seen many international lawyers make. He concedes there are all sorts of problems with international institutions, but then suggests that the United States doesn't really have all that much credibility when it criticizes those institutions due to the United States' various sins -- Chris describes it as a "lack of accountability."

There's an interesting problem here. Part of what keeps international institutions like the U.N. accountable is the threat, sometimes explicit, bythe United States and other countries that they will do the kinds of things Chris might describe as lacking respect for the international rule of law. Hence, one of the most important checks on the U.N., and one of the reasons the U.N. ever agreed to allow investigation into the Oil-for-Food scandal, was not the clamoring of NGOs, but the crusading of important U.S. Congressmen who were threatening to cut or withhold U.S. contributions to the U.N.'s budget. Imagine if the U.S. simply paid obeisance to the U.N. and the "international rule of law" and made its contributions without asking questions. Indeed, as Peggy points out, the United Nations Compensation Commission continues to stonewall even today claiming, among other things, that the Volcker Commission has no legal authority to investigate.

In a similar way, the U.S. criticism of the International Criminal Court has highlighted a serious flaw in the way that institution is designed. The choice to pursue prosecutions is, at the very least, partially political and granting unelected, unaccountable prosecutors the power to investigate and prosecute is always going to be slightly political. Just ask Bill Clinton or Ken Starr. The U.S. proposed a reasonable compromise that Chris alluded to. The international community (whatever that means) rejected it on the theory that the U.S. commitment to the "rule of law" would eventually bring them around. This hasn't happened and the ICC has not done itself any favors by suggesting U.S. multinational corporations could also fall within its jurisdiction (I pointed out in an earlier post that future Secretary of Homeland Security Chertoff made this point here).

So the paradox is that U.S. grousing about "sovereignty" is one of the only ways to actually keep international institutions like the U.N. accountable, something that Chris concedes is necessary. His other point, of course, is "who is going to keep the U.S. accountable"? I agree this might a problem, but I think the U.S. government is surprisingly accountable to a variety of constituencies: its own voters, its own media elite, foreign countries, etc. Notice that the Abu Ghraib trials continue with major media coverage due to a combination of these forces. It's not perfect, but at least the U.S. government has its own built-in system of accountability. I can't say that about either the U.N. or the ICC.