Why International Justice Limps

ON August 31, 1946, Albert Speer delivered his final remarks at the Nuremberg trials. He spoke not to exculpate himself, he explained, but to warn the West about some poorly understood dangers of modern technology. In five or ten years, he told the court, due to advances in nuclear, chemical, and biological weaponry, “10 men, invisible, without previous warning, faster than sound, by day and by night” will be able to “destroy one million people in the center of New York City in a matter of seconds” (Marrus, 1997: 226). Speer issued this extraordinary warning at the conclusion of a trial that still provides a model and inspiration for advocates of international criminal justice. What do his fears tell us about the troubled relationship between the ongoing war against terrorism and the ideal protection of human rights? First, they remind us vividly of the radical newness of the problem we face today. For Speer naturally assumed that the United States and Western Europe would be threatened principally by the Soviet Union. He believed that weapons of mass destruction would be kept under the tight control of a territorially based state, governed by leaders who, however messianic their ideology, cherished their own survival and whose country could be targeted for retaliation because it could be located on a map. The principal violator of human rights, according to classical liberal theory, is the autocratic state. Such a polity could be deterred, not from the cruelest sorts of domestic oppression but from the worst forms of foreign aggression by the West’s unstinting investment in its own horrifying arsenal of mass-casualty weapons. While denouncing the Soviet Union for trampling SOCIAL RESEARCH, Vol. 69, No. 4 (Winter 2002) Why International Justice Limps BY STEPHEN HOLMES human rights, the United States also deterred the Soviet Union. Its ability to do so presupposed the Soviet state’s iron grip on its territory and nuclear weapons. Proliferation beyond the superpowers would surely occur; but weapons of mass destruction, it was widely assumed, would remain in the hands of decision makers susceptible to deterrence. That deterrence is wholly useless against transnational Islamic terrorism is now self-evident. We face the danger of mass-casualty weapons in the hands of nonstate actors who can exploit the clandestine smuggling routes by which drug cartels easily foil American police and customs authorities. Like our nuclear arsenal , heavily mechanized ground forces are unusable against tiny groups of terrorists burrowed among civilians in the West. Having evolved to survive ruthless manhunts by determined intelligence agencies, Al Qaeda may now be an exotic organism that lacks a central nervous system and is therefore no longer susceptible to decapitation. America’s declared aim is to capture and incapacitate every last “cell,” even though nobody knows if this is even remotely feasible. What we do know is that there is nothing that our enemies cannot slip into the country, including unthinkably murderous weapons that, in a worst-case scenario, can make modern urban life unsustainable. Now that the war on international communism has been displaced by the war on international terrorism, the question arises: have human rights become just as obsolete as deterrence? To protect rights is to limit the state. But transnational terrorism is a product of state weakness, not of state strength. Protecting human rights against abusive state authority contributes very little to protecting our cities against threats emanating from nonstate actors. How and how well we are going to respond to this new threat is still unclear. But one thing is certain. Neither civil libertarians nor impartial judges will play a pivotal role in protecting America’s major urban centers from terrorist networks seeking to exploit shortcomings in the international nonproliferation regime. The kind of justice delivered by the American legal sys1062 SOCIAL RESEARCH tem, at its best, is not the answer. For instance, the carefully prepared and scrupulously conducted trial of those who attempted to bring down the World Trade Center in 1993 had zero deterrence value. Due process did not save the Trade Center or make America’s many other conspicuous targets any safer. On the contrary , information provided in the public record of the trial may have unintentionally helped...