Lots went on in international criminal justice this past week.

A few thoughts about three big news stories and a smaller one are below the fold.

1) Omar Bashir was indicted by the International Criminal Court. I was less surprised by the fact that a sitting head of state might be charged than that the list of charges actually included genocide. Not because the facts on the ground don’t suggest they should, but because of the nature of the crime and the nature of the court.

a) Genocide is an “intent” crime – to convict you have to prove not just that atrocities occurred, but that they were carried out with the specific intent to destroy a national, ethnic, racial or religious group. Historically, it’s been much easier to convict people for war crimes and crimes against humanity than for genocide, because few nefarious leaders are careless enough to leave a paper trail. Bashir, for example, has been a master of plausible deniability.

b) As a new institution still struggling for credibility within international society, the ICC has an explicit policy of going after only the most clear-cut cases, cases that it is likely to win. (Unlike its “activist” predecessors, the ICTY and ICTR, whose judges often made history with their interpretations of international law.)

But, perhaps this is a move calculated to make sure that some of the charges can in the end be dismissed. I predict the genocide charges won’t stand, for the same reason that the UN couldn’t condone a finding of genocide in its 2005 report on Darfur; but that crimes against humanity will. Then, the court can give the impression that it is evenhanded and apolitical.

2) Radovan Karadzic, former President of the Bosnian Serb breakaway republic in the former Yugslavia, was captured. I had little but kudos to say about it last Tuesday, but have followed a rather disturbing trend since whereby commentators and journalists refer to Karadzic as a “war criminal.” (I’m guilty myself, having cited Robert Farley’s blog post entitled “Genocidal Maniac captured.“) But the whole notion of international criminal law as rule of law is that a man like Karadzic is only a war crimes suspect until he is tried and found guilty. (At present, therefore, we must keep in mind that he is only an alleged genocidal maniac.)

3) The trial of Salih Hamdan, bin Laden’s former driver, will go forward at Guantanamo Bay after Hamdan’s attorney exhausted efforts to have it dismissed. The trial has been touted in the press as the first “US war crimes trial” since Nuremberg, though it’s really nothing of the sort.

a) The defense will argue that Hamdan was at worst a low-ranking al-Qaeda employee; and that much of the evidence against him was either coerced or provided willingly to military investigators on the hunt for bin Laden: Hamdan was not told that he was incriminating himself when he cooperated with the government.

b) The USG will argue that a terrorist is a terrorist, sexual humiliation isn’t degrading so evidence gained this way is admissible, and Miranda rights don’t apply to non-US citizens anyway so Hamdan’s cooperation with the USG doesn’t erase his crimes.

Leaving aside the question of whether a civilian who drives a car for the “enemy” has committed a “war crime,” one wonders about the implications for HUMINT operations if the USG develops a reputation for taking this stand. Which defectors from al-Qaeda or any other entity will provide us with actionable intelligence if we thank them by putting them on trial? Here is a clear case where following international rules is also in our concrete interest, a point continually lost on the Bush Administration. Good coverage of the Hamdan case over at SCOTUSblog.

4) Finally, John McCain told Wolf Blitzer that he could imagine bin Laden being prosecuted in an international court. If he means the International Criminal Court, the attacks of 9/11 couldn’t be prosecuted there: only crimes committed by al-Qaeda after July 2002 would fall within the court’s mandate. But more interesting is what this statement tells us about the likelihood of the US joining the ICC after the next election. Kevin Jon Heller writes about this and Obama’s position on the ICC at Opinio Juris.

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