Tag: international tribunals

Mind the Impunity Gaps


This is the first of a series of posts on “impunity gaps” in justice for atrocities that constitute genocide, crimes against humanity or war crimes. There has been a resurgence of optimism for international and transitional justice because the ICC’s judicial intervention in Libya and recent high-profile arrests and trial completions at the ICTR and ICTY. But I would like to shed some light on impunity gaps that persist for and within high-profile cases and for low-profile cases beyond the International Criminal Court.

An impunity gap can manifest itself in several ways:

  • There are no genuine international or national justice measures and/or there is a blanket amnesty.
  • There are non-judicial and/or non-punitive accountability mechanisms, such as truth commissions or local traditional justice, but these are perceived by victim communities and/or the international community as disguised impunity.
  • There is an imbalance in justice. Either not all parties to the conflict and/or only elite or low-level perpetrators are held accountable. (I would refer to this as a gap in the breadth and depth or criminal responsibility respectively.)

Arguably, this doe not really narrow the universe of cases. Most countries that require justice for atrocities can, at best, achieve partial accountability because of a lack of capacity or political will. I will focus on impunity gaps that pose the greatest risk for a resurgence or entrenchment of violence and where political hypocrisy explains the gap.

Various factors can explain the irony that those “most responsible” for the “most serious crimes” are not held accountable. For example, is it pressure, or lack of it, from specific actors, such as the UN Security Council or transnational civil society, that determines whether massive crimes against civilians will be exposed and punished? Kenya, Sri Lanka, Colombia are excellent studies here. Does the sequencing of peace and justice matter, as some contend is a factor for Libya, Sudan, and Uganda? What of the nature of the conflict, whether civil war or genocide, and how the violence ends, whether through negotiation or the decisive defeat? Cambodia, Rwanda, and Burundi reveal interesting dynamics in these respects.

The purpose of these posts is not to throw a cynical wet blanket over what is undoubtedly institutional and moral progress in international justice, but rather to call critical attention to individual cases of impunity gaps and identify patterns across them.

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Five Myths About International Criminal Trials

On the basis of what empirical studies I could find about the effectiveness of international tribunals versus execution of mass-murderers, I debunk the following in my latest Current Intelligence essay, responding to effects-based claims on both sides of the debate about whether Osama bin Laden should have been tried instead of summarily executed:

MYTH #1: OBL Could Never Have Received a Fair Trial.
MYTH #2: OBL Would Simply Have Used the Court as A Way to Promote Jihadism.
MYTH #3: A Trial Would Have Become a Focal Point For Further Attacks.
MYTH #4: A Trial Would Have Helped Deter Future Acts of Jihadist Terror and Build a Culture of Human Rights.

And lowest but most:

MYTH #5: The Question is Whether Trials Work.

In the final analysis, whether summary executions of terrorist leaders are preferable to trials is not a question of pragmatics. It is a normative issue. It is about whether an easy, illegal option with few benefits and certain drawbacks is preferable to a harder, legal option with equally uncertain outcomes. It is ultimately about whether or not the leaders of civilised nations believe they themselves are above the rule of law.

Read the whole thing here.

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Mladic, OBL and International Justice

It’s hard to overstate the significance of Ratko Mladic’s arrest last night. Moreso that Slobodon Milsoevic, Serbia’s president during the 1991-1995 war of ex-Yugoslavia, and moreso that Radovan Karadzic the political leader of the Bosnian Serbs during the war, Mladic is reviled by Bosnian survivors of the conflict as the former leader of the Bosnian Serb Army. Though best known for his his calculated role in the war’s most infamous massacre of over 7,000 noncombatants at Srebrenica – along with the subsequent massacre at Zepa, this was his crowning achievement after several years of war marked by sexual assault, forced displacement, massacre and general butchery of civilians and detainees. Danger Room has a well-linked round-up of info on the snatch.

What I find fascinating about the international reaction to his arrest is the importance of this man being brought to trial. At no point I am aware of during his years of hiding was it argued that he should instead be taken out by a targeted killing – partly because it was recognized that justice for his victims required a trial. Recent empirical research demonstrates that these courts have not only been able to effectively carry out prosecutions, but have had a number of other important positive side-effects, with few of the negatives originally feared. I remain puzzled that the ad hoc tribunal model has not been seriously considered for KSM, OBL or other terrorist masterminds.

[cross-posted at Lawyers, Guns and Money]

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A Nuremberg for Guantanamo?


GUÉNAËL METTRAUX, a international criminal defense attorney in the Hague, published a modest proposal regarding the Guantanamo detainees in today’s New York Times: instead of trying the detainees in military commissions or US courts, set up an international tribunal under UN auspices:

Trying these men stateside would necessarily require the compromise of long-cherished principles of American law. Yet continuing to hold them without the prospect of a fair trial or delivering them to undemocratic governments are alternatives not worthy of the Obama administration or of the United States.

America’s own endeavors at Nuremberg offer a way out of this impasse: an international tribunal for detainees. Such a tribunal would allow the Obama administration to finally try these individuals and close down Guantánamo — and it would bring the nation back within the tradition of law and justice that it so forcefully defended six decades ago.

We need not look as far back as Nuremberg. Recent international tribunals for Sierra Leone, Cambodia and Yugoslavia have provided fair trials in challenging political environments to men and women accused of the gravest of crimes. In The Hague right now, an international criminal tribunal is looking into the terrorist attacks that shook Lebanon in 2004 and 2005. This tribunal — created by the United Nations Security Council at the initiative of the United States, among others — provides a ready model of a court capable of dealing with the detainees.

But it does actually matter whether he is talking about a Nuremberg or a hybrid international court similar to those previously set up under the UN. For example, only by confusing the two would he seem so confident an international tribunal would be less, rather than more constrained than US courts on grounds of due process. Historically speaking, late 20th century tribunals have had higher legal standards than domestic courts, and often more complex ones, sometimes drawing on multiple legal traditions from different countries. (Nuremberg indeed adopted more flexible standards such as, ex-post-facto justice, but this has been widely criticized and corrected in more recent institutions which tend to err on the side of the rule of law.)

Contemporary international tribunals, unlike the Nuremberg and Tokyo tribunals, are also notorious for trying criminals on both sides of a conflict. There are those who would argue that certain US officials should stand trial in the same court for their sins during the same “global war” – just as the ICTY tried and convicted combatants from all sides of the war in ex-Yugoslavia.

If the court Mettraux foresees is indeed another Nuremberg, this would be a significant digression from, rather than an extension of, the normative and legal precedent set by the existing UN and hybrid tribunals set up in the 1990s. I think an international tribunal is a fine idea but I doubt, as he seems to think, that the US can have its cake and eat it too.

What of the practical workings of such a court? Mettraux imagines that:

Those now held in Guantánamo would be placed under international control and their trials held on neutral ground. American and foreign judges and prosecutors with experience in international criminal cases would then be enlisted to provide the expertise required to hear these types of criminal cases. As with the Special Tribunal for Lebanon, it would be paid for by a combination of American contributions and voluntary donations from other nations.

Law professor Michael Kelly, blogging at the Jurist, is skeptical that this would be as easy as it sounds:

“Placing it in Afghanistan (where most of the detainees were captured) would be problematic for obvious reasons. So to would be staffing it with a blend of local and international specialists. Afghanistan is barren of an effective bench and bar.”

But Kelly doesn’t oppose the idea in principle. And he raises another interesting point: the importance of incorporating Islamic jurisprudence into the Statute:

“Participation from the Islamic legal world in the development and functioning of international criminal law institutions is meager. Buy-in from that sector would be critical to the tribunal’s legitimacy. Geographic placement in Cairo instead of The Hague would also be a symbolic and meaningful gesture. The well-developed lawyer class in Egypt could be tapped to assist, as well as the penal system – keeping Islamic convicts in jail in an Islamic country.”

But Kelly cautions against idealism about the process, and I concur. It’s a good idea, but let’s not treat it at any kind of an easy solution – legally, logistically, financially or politically.

Still, to paraphrase both Winston Churchill and Gary Bass, international tribunals are a bit like democracy: the worst form of post-war justice in the world… except every other kind.

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(Soft) Power Politics

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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