No Comment, Six Questions — May 18, 2012, 9:34 am

Unimaginable Atrocities: Six Questions for William Schabas

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A successfully completed prosecution in the International Criminal Court, new demands for investigations into atrocities in Syria, ongoing issues surrounding crimes committed by American officials during the Bush-era “war on terror”—international criminal-law issues are steadily topical. Canadian scholar William Schabas, now a professor at Middlesex University in London, is one of the world’s leading writers and speakers on the subject. I put six questions to him about his new book, Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals.

1. Just weeks ago, the International Criminal Court handed down its first judgment, convicting Thomas Lubanga of crimes relating to the recruitment and direction of child-soldiers in the civil war in the Democratic Republic of the Congo. The case was at once hailed as a triumph and condemned as a demonstration of the incompetence and inefficiency of the ICC. Who was right?

Both are right. A permanent international criminal court dealing with alleged perpetrators of massive human rights abuses has been a dream for decades. It promises universality, and therefore attempts to address the double standards that have troubled international justice in the past, whereby powerful individuals in strong countries go unpunished unless they have the misfortune to lose a war. A verdict in its first trial is a milestone for the court. Meanwhile, new member states continue to join up. Even the Security Council showed its confidence in the institution when it adopted a unanimous resolution, in February 2011, providing authority to prosecute the situation in Libya. So the wind is still in the court’s sails, even if its performance has been rather lackluster.

The first trial revealed serious flaws. It took six years, from arrest to verdict, for what is surely one of the simpler cases to come before any international criminal trial. The Nuremberg trial, by contrast, was over and done with in slightly more than a year. The first trials at the Yugoslavia and Rwanda tribunals, during the 1990s, took about two years or so.

The painfully protracted process at the International Criminal Court has been ascribed by some to its more elaborate procedural regime, much of which is said to enhance the rights of the defence. But justice delayed is also justice denied. Nobody should wait six years in jail for their trial to take place.

The Lubanga trial was nearly aborted on two occasions. In their verdict, the judges blamed the incompetence of the prosecutor, who had been cavalier in his duty to inform the defence about the existence of some of the evidence.

2. In military commissions convening at Guantánamo, the United States is charging a number of prisoners with crimes defined by Congress in the Military Commissions Act of 2006—but the conduct in question invariably occurred long before the legislation declaring it a crime. The problem of nullum crimen sine lege seems a constant in international criminal law. Is there anything particularly challenging about the retroactive charging of crimes by the American government at Guantánamo?

It might be safer to say that while state practice is evolving, and that amnesties in peace agreements are increasingly viewed with disfavour, a prohibitive legal rule has not crystallized. Some international lawyers tend to exaggerate the reality of both the law and the practice out of concern that if the door to amnesty is left even slightly ajar, unprincipled politicians will pry it wide open. It is better to tell peace negotiators that amnesty is simply not an option, they reason, rather than let them retain it in their tool box as a mechanism to end conflict in appropriate situations, however exceptional these may be. But misunderstanding of the law prompted by misrepresentation of its scope will discourage peacemakers from resorting to amnesty in appropriate cases, making it harder for them to complete their task. To the extent that conflict is prolonged, human suffering, hardship and violations of rights will result from rigid application of the so-called prohibition on amnesty. This is not desirable.

—From Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals. Reprinted by permission of Oxford University Press, © 2012 William A. Schabas.

It isn’t a violation of the rule against retroactive crimes (nullum crimen sine lege) to actually define offences after they have been committed, providing that they were in substance recognized as crimes under international law at the time of their commission. Human rights jurisprudence does not insist on technical codification, providing that when the act was perpetrated, it was reasonable for the accused person to know that the act was prohibited.

Although the military commissions have many serious flaws, I don’t think retroactive prosecution is much of an issue. By and large, the commissions deal with war crimes for which we have recognized standards dating back many decades, even centuries. Four justices of the Supreme Court said, in Hamdan v. Rumsfeld, that conspiracy had not previously been a crime punishable by military commissions. But that’s not the same thing as saying it was not a crime at all.

3. In the theory of domestic criminal justice, selective prosecution is often identified as a weakness that undermines the legitimacy of the system. But you write that in international criminal practice it is a constant to which we need to reconcile ourselves. Why is that so?

Selective prosecution, and selective law enforcement more generally, may still afflict our domestic justice systems. But it is condemned as a breach of everyone’s right to equal protection of the law. We would never accept a government that prosecutes serious crimes such as murder and rape in one part of a city or a state while simply ignoring other communities and neighborhoods. Our systems are imperfect, but our expectations are clear. Where a national justice system fails to deliver a reasonable level of consistent and universal justice, its legitimacy is terribly undermined.

The problem at the international level is that courts can never address more than a tiny handful of deserving cases. After a decade of operation, the International Criminal Court is proceeding against fewer than a dozen defendants. Given the costs of trials and their length, and given the size of the institution, it is impossible to expect much more. By its very nature, the International Criminal Court must be selective. That means it needs convincing, reliable criteria and an acceptable methodology for such selectivity. It doesn’t have this.

The standard answer to this complaint is that the International Criminal Court has an independent prosecutor, who is immune from political concerns. Many believed such a model would free international justice from the domination of the United Nations Security Council. That has proven to be a myth. The prosecutor has never strayed outside the comfort zone of the Security Council’s permanent members, focusing instead on places like Darfur and Libya, and steering clear of areas like Afghanistan, Iraq, and Palestine. Nowhere else at the international level do we have a single individual with the authority to set the priorities of such an institution.

The fear that an international court would be dominated by the Security Council is legitimate. But the solution does not seem to be handing over the power to set the court’s priorities to an unaccountable individual.

4. One of the biggest challenges in enforcing the laws of war is when nations cloak their officials in immunity. American federal courts have recently concluded that immunity doctrines block claims against U.S. officials and their contractors that are predicated on torture, official cruelty, and disappearances. Just a few days ago, the Ninth Circuit overturned a district court ruling in Padilla v. Yoo, finding that torture-memo author John Yoo had immunity from claims linking him to the torture of prisoner José Padilla. What do you think of the Ninth Circuit’s reasoning? Do judges risk making themselves into accomplices under international-law norms when they rush to protect war criminals with immunity?

The quest for the judicial international prosecutor—one who is above politics, and who is modelled on domestic prosecutors where all serious crimes against the person are addressed regardless of political considerations—is as elusive as the search for the end of the rainbow. For this reason, the Rome Statute is incomplete. The Prosecutor does, in fact, make political choices. He or she does not seriously consider for prosecution all admissible situations that fall within the jurisdiction of the Court. Some, like Iraq, are set aside because they concern powerful states, although the justification for this gets dressed up in unconvincing language about comparative ‘gravity’. Others are selected where they seem to represent a consensus of some states, but not all. Prosperous states in the global north seem pleased enough that prosecutorial energy is devoted to central Africa. When African states complain that they are being unfairly targeted, the answer is that the determinations are based upon ‘gravity’ and that they respond to objective criteria. This is about as persuasive as the suggestion that the United Nations Human Rights Council focuses on all serious country situations involving human rights violations, or that the United Nations Security Council deals in an even-handed manner with all threats to international peace and security. The only difference is that the Councils of the United Nations are avowedly political bodies and they make no pretence to the contrary.

—From Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals. Reprinted by permission of Oxford University Press, © 2012 William A. Schabas.

The recent decision holds that John Yoo cannot be sued because although today the practices to which he gave a blessing are acknowledged as torture, this was allegedly not beyond dispute between 2001 and 2003, when he gave his advice to the government. There is a lot of sophistry in the decision. The best the judges can provide in support is a 1978 decision of the European Court of Human Rights describing certain repulsive techniques of abuse as “inhuman or degrading treatment” rather than as torture. The decision has a smell of the argument that Nazi judges and prosecutors invoked at Nuremberg when they were charged with crimes against humanity for, in effect, applying the law. They were convicted by an American military tribunal following a trial made famous in the Abby Mann play and Stanley Kramer film Judgment at Nuremberg. The standard applied by American judges then was whether the law being applied was manifestly unlawful. The torture memos easily fail that test.

Immunity is a dangerous concept because it encourages the amorality of certain judges and policy-makers, including those who counseled the Bush administration. Like the Nazi magistrates, they needed to ask if the treatments they were promoting were manifestly unlawful. Whether the yardstick is the Eighth Amendment to the Constitution (“cruel and unusual punishment”) or Article 5 of the Universal Declaration of Human Rights (“torture and cruel, inhuman or degrading treatment or punishment”) makes no difference.

5. In the past year, the United States, while declining to join or offer direct support to the ICC, has sought to enlist the ICC as a foreign-policy tool—pressing for the prosecution of Qaddafi and his inner circle, for criminal charges in Sudan and Kenya, and now in Syria against the Assad regime. Is this fresh wind in the ICC’s sails or a challenge to its credibility?

Although it is not going to join the court anytime soon, the United States has become a keen supporter of its activities. That is because the court’s behavior in its early years convinced Washington that none of its vital interests were threatened. This is mainly the achievement of the court’s prosecutor, Luis Moreno-Ocampo. He has quietly provided assurances to the United States government (as some WikiLeaks documents demonstrated) while at the same time refusing to investigate serious violations perpetrated in places like Iraq and Gaza.

Those who see U.S. support as crucial to the prosperity of the court are delighted. But there is a price to pay. This is a bit of a zero-sum game. The more enthusiastic the United States becomes, the more lukewarm support for the court becomes in other parts of the world, particularly Africa.

6. The crime of genocide, which sits at the heart of your book, has become a sore point for many international criminal-law experts, who argue that the label is too frequently abused and difficult to invoke properly. They urge us to avoid its use and instead speak of “atrocity crimes.” Is this concern well-founded?

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Genocide is a word with great rhetorical power, as former secretary of state Madeleine Albright and former secretary of defense William Cohen noted in a 2008 report. They criticized academic lawyers like myself for insisting upon precise definitions, arguing that such pedantry inhibited mobilization of a robust response to atrocities.

But there is an agenda at work in this blurring of the lines. Albright and Cohen were promoting a message of intervention, including military intervention, to prevent atrocity crimes. That’s fine, providing there is general agreement at the international level, consistent with the Charter of the United Nations. Their idea was that even if international consensus were absent, it would be acceptable to send in the Marines, because “genocide” needs to be prevented. They wanted to redefine genocide so it would cover a much broader range of atrocities and human rights violations. In practice, they wanted a blank check for unilateral military intervention on the pretext of preventing humanitarian disasters.

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