Friday, February 24, 2006

"The False Hope of International Justice"

As I've made clear in previous posts both here and at Opinio Juris, I'm no big fan of international law, and in particular, of international courts as a way to seek justice. In this month's Foreign Policy, Helena Cobban has an excellent piece (unfortunately, it's not available on-line yet) making the case that "criminal tribunals...have squandered billions of dollars, failed to advance human rights, and ignored the wishes of the victims they claim to represent." Here are some of the choicest pieces:
As of November 2005, the International Criminal Tribunal for Rwanda (ICTR) had handed down judgments for only 25 individuals. More than $1 billion has been spent on the tribunal so far, or about $40 million per judgment. By contrast, South Africa's truth commission processed 7,116 amnesty applications for less than $4,300 per case. In post-conflict Mozambique, programs to demobilize and reintegrate thousands of former combatants cost about $1,000 per case. Rwandan community leaders aren't shy about saying that the more than $1 billion the UN has so far poured into the ICTR could have been better spent....

The courts in Nuremberg and Tokyo were part of a broader political project that aimed to rehabilitate the occupied countries socially and economically, not simply to try guilt or innocence or hand out hard punishments. The Allies enaced a punitive policy towards Germany a quarter-century earlier, with disastrous results. The US-dominated courts established after World War II were stream-lined and efficient -- perhaps to a fault. At Nuremberg, defendants were given no meaningful right of appeal, and the prosecution was able to introduce documentary evidence into the record that defendants could not challenge. But the fact that many due-process concerns were swept aside meant that the court completed its work in less than 11 months; 10 of the 22 defendants were hanged on Oct. 16, 1946....

By contrast, the international courts for the former Yugoslavia, Rwanda, and the new ICC in The Hague operate under civilian law and provide generous protections to defendants. The result is a ballooning of the courts' timelines and costs. It took the ICTR 10 years to complete the same number of trials that Nuremberg conducted in less than a year. The trial of Slobodan Milosevic is now in its fourth year. Nor have these societies been able to make a clean break with their past. The protracted and always polarizing exercises that are today's war crimes trials cannot serve the same decisive political and social function that Nuremberg did....

Because most atrocities these days are committed during violence intergroup conflict, most survivors seek first and foremost an end to the fighting and to regain basic economic and social stability. That is no small matter. Nations have found various ways to deal with perpetrators of violent acts, and throughout history many of these methods have given priority to the reintegration of wrongdoers into normal, nonviolent existence. In Mozambique, the 1992 peace accord than ended 15 years of civil war mandated a blanket amnesty for all those who committed war crimes. It also provided for the demobilization of fighters from both sides and their reintegration into civilian life....Nearly all the Mozambicans I talked to between 2001 and 2003 expressed great satisfaction with the 1992 amnesty. Most said they could not imagine prosecuting people who had committed wartime atrocities. "If we did, the whole nation would be on trial," one man said. Satisfaction with amnesties can be found elsewhere. In South Africa, researchers found in 2001 that more than 75 percent of black citizens were satisfied with the work of the truth commission -- which offered complete amnesties to former perpetrators who met its conditions.
Why do people believe that internationalizing something makes it inherently better, more legitimate, or more just (I'll be examining this question -- the sources of international legitimacy -- in a few days)? In cases like Milosevic or Hussein, kangaroo courts to air what is already known should be sufficient. For other, more widespread situations like in Rwanda, South Africa, or Mozambique, leave the pursuit of justice up to the nation itself. It will proceed in the manner it best sees fit.



11 comments:

fdelondras said...

NO No no no - kangaroo courts to air what we already know?? How does that fulfill the aims of transitional justice systems?? How does it reinstate the Rule of Law - it merely undermines it. The worst thing about international tribunals in cases like Nuremberg is the 'victors' justice' element of it which undermines its integrity. The choice of the kind of legal system (if any) that will be used in periods of transition will depend on

* The nature of the issues to be considered
* The willingness of the national legal system to deal with the situation
* The ability of the national legal system to deal with it
* National and international political will

It is completely unfair to say that institutions like the ICTR have done nothing to advance the cause of international justice - what about decisions like Akayesu?? What about the fact that ther ICTR jurisprudence has advanced the law of genocide more than anything else since the Genocide Convention??

Sorry - it's late here in Dublin but this INFURIATES me (and I'm in the middle of writing a book chapter on the role of international justice systems in providing remedy to victims of mass violations of human rights!!)

Seth Weinberger said...

Fiona:

I think you're missing the point by focusing on my "kangaroo court" comment. Is justice or the rule of law being advanced by Milosevic sititng in court for more than 4 years? Will justice be served if he, or Hussein, is acquitted because they can't be directly linked to massacres and genocide? In the case of political leaders like these, it's better for justice, it's better for rule of law, and it's better for the world if their crimes are exposed and they're convicted. In the cases of the populace in general, as in Rwanda, international justice is little more than a farce that impedes the development and transition of the damaged society.

The ICTR may have advanced the "cause" of international genocide law, but if you think that will matter one bit in helping the victims of the next genocide, you're deluding yourself. In the absence of a centralized authority, the rule of law means nothing. How much is Akayesu or the law of genocide doing to solve the problems in Darfur?

James said...

It's hard without reading the entire article (too bad they don't make these articles available online) to launch any sort of defense on behalf of the international justice system. So bear in mind I'm only responding to your post and your comments.

I think first of all, that it's hard to tell whether the costs and time a tribunal spends, etc. are criticisms against a system of international justice per se or a criticism of international justice as it is today. Large costs might be the result of the novelty of the trials, creating a Western style legal system ad hoc in developing countries, or simple financial mismanagment on the part of the people running the tribunal.

For example, responding to one of your criticims, the sheer novelty of the trials might result in procedures that have no way of effectively dealing with dilatory defendants or defense counsel like in Milosevic's case. Proponents of an international justice system have made similar complaints but that doesn't mean necessarily that you have to throw out the substantive baby with the procedural bathwater.

Furthermore, a permanent court which develops expertise in trying these complex cases and a body of precedent might be able to reduce costs in the long run after a more costly period of starting up. Reviewing the costs of ad hoc tribunals (whose costs were one of the motivations behind establishing a permanent court) or the ICC which has only existed for three or four years seems too soon to make a case one way or the other.

Secondly, no one I think quibbles with the idea that national courts must in some way be responsible for trying international crimes. Almost every tribunal that has existed has taken a view to establishing national courts down the line to deal with offenders (for example in Germany after Nuremberg, or the ICTY's work with the former Yugoslavia). Even the Rome Statute itself gives the right of first prosecution to the nation, before the ICC steps in.

But international tribunals may be beneficial, especially in places like Iraq where you still have the threat of ongoing sectarian conflict. Having an international tribunal may expose Hussein's crimes against all Iraqis, not just Kurds and Shiites. Yet, having a national tribunal with a Kurdish chief judge, rather than a "disinterested" one, might give Hussein's supporters and Sunni Muslims the wrong image that the Iraqi Special Tribunal is nothing more than a way to purge Sunni influence from the country.

Also mixed tribunals, like in the case of Sierra Leone allow international experts to help develop systems of justice in countries where the system was in disrepair, train judges, and establish legitimacy for an independent judiciary.

The passage you excerpted seems to suggest that amnesty is the way to go. But not all amnesties are equal. The notion of impunity and international crime, as you well know, is that certain crimes are of such magnitude that all of humanity must condemn them. The ruling elites of Mozambique may prefer amnesties to trial, but I as a human being have an interest in ruling elites and states being held to account. The international criminal justice system is a way of ensuring that I can protect all people's dignity and in that way protect my own. That doesn't mean engaging in an idealistic crusade which ends up doing more harm than good, but it does give me and the international community who represents me some way of guaranteeing justice and establishing a system of review of national procedures.

Finally, your response to the commenter about how has the ICTR done anything to stop Darfur, I think, demonstrates a real flaw in criticisms against international justice sytems in that it looks through the lens of deterrence rather than retributive conceptions of justice. It also assumes that proponents of the international justice system believe that those courts standing alone should be the sole and primary organ responsible for deterring international crimes. As Justice Jackson pointed out at Nuremberg:

"I am too well aware of the weaknesses of juridical action alone to contend that in itself your decision under this Charter can prevent future wars. Judicial action always comes after the event. Wars are started only on the theory and in the confidence that they can be won. Personal punishment, to be suffered only in the event the war is lost, will probably not be a sufficient deterrent to prevent a war where the warmakers feel the chances of defeat to be negligible. ... The usefulness of this effort to do justice is not to be measured by considering the law or your judgment in isolation. This trial is part of the great effort to make the peace more secure."

The ICC and international tribunals are just one of the tools humanity has to make the peace more secure. When examining their impact, they shouldn't be measured to a standard that they were not intended to meet.

Seth Weinberger said...

James:

You make some very good points, but you never really engage the fundamental criticisms: that the justice provided by international tribunals is inferior in many ways to other options. You mention that you as a human would like to see those responsible for gross violations of human rights held accountable and punished for their actions. Of course. Who wouldn't? But what if your desire for justice means that the elites won't ever step down? Or that the society will be torn apart by by years of trials and incrimination? But, this isn't even the main objections to these trials.

The biggest problem is the question of the balance between procedural and retributive justice. International tribunals are predicated on procedural justice, which just isn't appropriate in these situations. What made Nuremberg work, despite much of the revisionist history, is that is was fundamentally a practice of victor's justice. Many of the international crimes, such as genocide, for which the Nazis were tried did not exist until created by the tribunal. The defendants were given pro forma defense. Nuremberg was about retribution and was integrated into the political rehabilitation of the shattered Axis powers.

You also write that international tribunals should not be expected to provide deterrence. Then what is the point? A legal system that does not deter is useless. But I wasn't even speaking of deterrence; I was more concerned with enforcement and protection. Does international law do anything to stop the commission of horrible wrongs? Can the international community? No. Darfur will only be protected if the US chooses to act. This is not justice in any meaningful sense of the word. As I have mentioned in several other posts, international justice is fundamentally impeded by the legal bounds of sovereignty. The UN can't have it both ways.

Finally,answer me one thing: If Milosevic gets acquitted due to insufficient evidence, which many observers feel is likely, will justice be served in any way?

Toni said...

What an interesting conversation to have, and a timely one worth having as the International Criminal Court proceeds with its initial investigations and preliminary case against the Lord's Resistance Army. One of the questions that I haven't seen addressed yet is that of pursuing and defining justice in the context of international tribunals or domestic transitional justice mechanisms. Certainly western concepts of the rule of law and legal standards for proof and due process have come to define the mandate, scope and functionality of international tribunals. I'd go so far as to argue that such approaches to end universal impunity for mass human rights violations meets the standard of justice for the western faction of the international community: for the world's power players to willingly recognize and support post-conflict governments, the price paid by those countries and those most responsible for the violence is a tribunal like those used in Rwanda and Yugoslavia.

You ask whether justice will ultimately be served if Milosovic or Hussein are not convicted due to lack of evidence or some other failure to meet the burden-of-proof threshold. I could argue that a not guilty verdict could further certain concepts of jurisprudence more than a guilty verdict because of a lack of perceived victors' spoils.

Back to the question of whose justice: Whereas amnesty programs have been cited as successful examples of ways for societies to move past the atrocities that divided communities, some argue that criminal tribunals -- domestic or international -- only serve to further divide communities as victims relive their horrors and perpetrators are publicly reviled for their participation. Yet both mechanisms are arguably means to achieve some form of justice, whether accountability or social reconciliation. In those instances where domestic courts have been decimated by years of violence, or where communities have no trust in the authority of their courts because the courts themselves were complicit in commmission of atrocities, how can the argument be made that a domestic tribunal is sufficient? Wouldn't an international tribunal provide one way to re-introduce trust in a judicial system back into that community?

One final thought: this conversation derives from a column about the financial cost of international tribunals. Included in the discussion has been the $1 billion pricetag for the ICTR juxtaposed against the less-than-$5,000 cost for South Africa's amnesty program or Mozambique's DDR program. Those numbers paint a glaring picture at first glance, but they don't tell any of the qualitative story: whether the $1,000-per-combatant cost to demobilize former soldiers in Mozambique furthered economic development for the country or resulted in disproportionate income distribution that has not been reinvested into the community; whether the $1 billion invested through ICTR has provided any sort of social forgiveness. These are much more complicated issues than a simple comparison of costs can address.

Seth Weinberger said...

Toni:

Thanks for a thoughtful post and raising some interesting questions. First, as to your question about the costs of the tribunals v. those of the amnesty programs, you are absolutely correct to claim that it is not just about the raw costs in a simple sense, and that the benefits produced must be factored into the equation. I am certainly no expert in African domestic politics, but from everything I do know, both South Africa and Mozambique are in much better shape than is Rwanda. The amnesty programs have enabled the societies to rebuild a modicum of national integrity and cohesion and have put those countries on an upwards path. Rwanda remains mired in misery, in part due to the torturous legal proceedings that are keeping the wounds open. I would love to hear from someone more knowledgable than I if these assessments are correct.

You also ask if "a not guilty verdict could further certain concepts of jurisprudence more than a guilty verdict because of a lack of perceived victors' spoils." I would say no. Nothing would be more damaging than to let the perpetrators of these genocides go free. I see a difference between convicting the political leaders responsible and the "average" citizens engaging in genocide. Sacrificing retributive justice for procedural is a luxury of well-established states; states in transition need to see those responsible for the horrible crimes either removed from the scene with immunity, or if tried, found guilty and punished.

James said...

Let me see if I can try to understand the premises of your argument, Seth. If I'm misunderstanding please correct me. The syllogism as I see it is:

(1) International tribunals elevate procedural justice over retributive justice.

(2) Because international tribunals elevate procedural justice over retributive justice they enact costly and time-consuming procedures.

(3) These costly and time-consuming procedures make international tribunals inferior to other forums for carrying out the shared interest in prosecuting major international crimes.

In support of these arguments you give examples of Nuremberg, some cost comparisons, and then general issues with international law. But since the tenor of most of your posts deal with procedural vs. retributive justice let me address that.

First, I think you would agree that there should be some procedures generally for the enforcement of justice on any level -- otherwise what you would have is vigilante justice, purifications, or general amnesties which do not ensure offenders would be punished (or might result in mistaken executions or whathaveyou). The question is "how much process is due?" Of course, the answer to this question is one of degree and not dependent on the forum. An international forum could easily be constructed along the lines you'd want (for example you mention Nuremberg as a paradigm, an international tribunal with fewer process protections). So saying that the procedures are too lenient or costly is not the same as saying international forums have no place in adjudicating crimes. I don’t think you can wage an attack on the substance of international justice simply because of the procedures currently in place.

Second, you treat Nuremberg as if it were a monolithic, single year event and after that prosecuting Nazi crimes stop. The major crime trials of Nuremberg lasted until 1949. Eichmann was executed by Israel in 1962. The Office of Special Investigations for the Department of Justice is still pursuing denaturalization, expulsion, and extradition of Nazi criminal defendants now nearly 60 years since the Nuremberg trials. So as far as international trials “keeping wounds open” for years later, you could say that about the several national quests for justice with war criminals of the Nazi era. And I’m sure it costs more to denaturalize an eighty year old Nazi in the U.S. than a case in Mozambique. But is anyone in Foreign Policy proposing a general amnesty for Nazis in the U.S.?

Also you’re judging Nuremberg by procedures in place today. The question shouldn’t be that, the question should be how criminals were treated before Nuremberg under court martial systems and unconditional surrenders. Did they have more or less process? Were there any prosecutions at all? Was Nuremberg the least costly proposal given for dealing with Nazis after WW II?

Finally, the question of enforcement is the problem all laws have, national and international. All courts depend on executive action to carry out their decisions. As was attributed to President Jackson a century and a half ago “Marshall has made his decision, now let him enforce it.” The Supreme Court of the U.S. has as much actual real power of enforcement as does the ICJ or the ICC. If there is no popular or executive will to enforce a court decision it will not be enforced. Likewise, the mere existence of a criminal court of Washington State and a penal code cannot actually prevent a crime from occurring; only the police can prevent crime and bring defendants before the court to face justice. The problem with international justice, unlike say the U.S. justice system, is that it necessarily has a weak executive – that being the U.N. Security Council. But again, that is a problem, not with the theory of international justice, but with the current way the system is being carried out. The ICC and tribunals are incremental steps on the pathway to a more well-respected and enforced international law. Whether they are ultimately successful in deterrence will be dependent upon the international community’s will to help them carry out their judgments.

Another book length comment!

Seth Weinberger said...

James:

Yes, I can, will, and do wage an attack against international justice in toto. While I do recognize that sometimes we can get satisfactory results from international tribunals, that can and will only occur when the law happens to be coincident with existing power relationships. Nuremberg was not a triumph of international law; it was a triumph of Allied military power. If the Nazis had won, or even surrendered in any degree less than unconditional, Nuremberg wouldn't have happened. Nor would Milosevic or Hussein be in the dock if the US hadn't decided to wage war on behalf of the victims. Nor would the ICTR exist if Rwanda was a country with any meaningful power on the international stage. Where's the international trial for Pol Pot? Stalin? Mao?

Of course law requires power; that is why domestic law is effective -- because it is backed by a government with a monopoly on the legitimate use of force. But the power cannot be capricious. For a legal system to be legitimate, the power and law must be enforced fairly and evenly. This is far FAR from the case in international law. To argue that the US Supreme Court has as much power as the ICC or ICJ is, to be frank, inane. The USSC has the power of an entire state behind it, as well as the power of legitimacy. And the power of the USSC isn't dependent on whether the US wants to enforce its rules at any given time or not. The ICJ contains "opt-out" clauses by which states can simply declare that the ICJ has no jurisidiction in the case at hand. What would the ICC do if a state refuses to hand over an accused?

My point is we need to recognize the inherent limitations of international law, and not pretend that international law represents any coherent sense of justice. When a country loses a war, the international community is able to impose its will and punish those who violated international norms. But that is not the same thing as justice.

So, why should we pretend that these trials are anything other than what they are: exercises of power by the strong against the vanquished? Using procedural standards that are so critical in a domestic setting does not make sense in international law.

James said...

Just to respond to the "inane" nature of my comments about the USSC. In its first 50 years of its existence the USSC was routinely in conflict with the states and its power routinely questioned. It wasn't until after the Civil War that it's power was cemented. Even as recently as 50 years ago, Eisenhower had to send federal troops to enforce desegregation decisions. The Supreme Court, in and of itself, can do nothing to enforce its own decisions on anyone, which is what I'm talking about in terms of real power. Justice Souter can't come to your house and attach your property even if he thinks that's what the law intends to do.

Now, if the Security Council sent troops to seize every sheltered suspect, you'd bet that the ICC decisions would be complied with and genocides would stop. The same is going on with Serbia, the EU, and the ICTY. It has nothing to do with courts or law, it has to do with the ability to enforce.

The power of legitimacy that the Supreme Court has only come through 200+ years of operation, civil war, and strong federal executive will. And it was far from guaranteed that, that was the outcome. And this was in a relatively homogeneous nation. Congress still considers stripping the Court of its jurisdiction to hear cases (and has done so for Guantanmo Bay) and could slash the federal judiciary's budget to slow the court's to a crawl. The Court is also constitutionally limited by Article III.

As I said, all the problems you raise aren't about international law, they're about enforcement and lack thereof. The nation-state wasn't developed in a day and its monopoly on legitimacy and the use of force was far from clear (and I think the past century has shown the limits of the nation state to solve global problems). The international system won't be built as quickly either.

Seth Weinberger said...

James:

It's not correct to say that my objections to international law are all centered around enforcement. That is, of course, a critical component of law, and you're right to say that the USSC has had some bumps in the road. But ultimately, in every case, USSC decisions have stood and have been backed by power.

But it's not all about enforcement. The more fundamental problem is abou the nature of the legal commitment itself. People in a society commit themselves to following the rules and ideals of that society and to abide by the process set forth in its rules. So, even if Americans disagree about abortion, gun control, or anything else, we agree on the Constitution (although not necessarily the interpretation of the Constitution), and more importantly the process of interpreting, adjudicating, and enforcing the Constitution.

That agreement is not present in international law. What are the binding values of the international system? The only one is sovereignty, which is antithetical to law. The states of the world have not agreed on a common set of values other than sovereignty that they are willing to protect, nor a process other than that that protects sovereignty that they are willing to follow. Because of this, international law is completely dependant on power in a way that domestic law is not.

Please note that nowhere do I say that I believe that international law can never exist in a meaningful sense. If humans were willing to give up their individual freedom and sovereignty to join society, I don't see an inherent reasons that states can't do the same. I just don't think we're there yet, and that it is counter-productive and detrimental to act as if we are.

Canadian Critic said...

This article naively assumes that left to 'proceed in the manner it best sees fit', post-conflict nations will always do what is best for their citizens. Where the worst war criminals are those who remain in power, there is little hope of restitution or justice for the victims of war crimes.