Monday, February 27, 2006

How not to criticize the international criminal justice project

The international law/international relations blogosphere is abuzz with commentary on an article by Helena Cobban in “Foreign Policy” about the failures of international criminal tribunals.

While I have yet to read the article, apart from excerpts cited on various blogs, I feel that some of the commentaries raise interesting points about how one should criticize the international criminal justice project. My two cents:

First of all, I am a bit astounded by the debate about costs. Referring to the Rwanda Tribunal, the article notes that
“[a]s 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.”
Over at Opinio Juris, Julian Ku asks “Are International Criminal Tribunals a Waste of Money?” His conclusion:
You might say that ensuring punishment and the end to impunity is worth the $1 billion, but there is some point when even the end to impunity isn't worth it. Or, more accurately, justice is not actually being achieved if the cost is so high. There are cheaper alternatives, by the way. Rwanda could itself punish the perpetrators or, as the ICTR has started to do, the ICTR could outsource to other countries (as it has started doing)
Well, Rwanda is of course punishing perpetrators (or, as the criminal defence pedant in me would put it, “prosecuting alleged perpetrators”) already, so any criticism of the ICTR should take into account how those alternatives are actually faring–the literature on the pros and cons of Rwandan gacaca courts is pretty vast.

But apart from this quibble, let’s just assume for the moment that the ICTR, through its judgments (even if there were only 25 of those), has actually managed to convey to the world that perpetrators of genocide will be brought to justice (or whatever lofty goal one attributes to international criminal trials): Would not that result be worth a billion dollars (even if it might also have been arrived at for a lower cost)? If not, how much would it be worth?

Just to put things into perspective, the Iraq war has cost the United States alone hundreds of billions already, according to this website.

Second, I have read several critiques claiming that most international tribunals are little more than “Kangaroo courts”, and I think there is at least some truth to such claims (See Michael Mandel's book referred to in an earlier blog post, as well as this article). I was also intrigued by an article by Martti Koskenniemi, who shows that international criminal tribunals, because they aim to participate in the writing of history, are always in the danger of becoming “show trials.” (Between Impunity and Show Trials, 6 Max Planck Yb. UN L. (2002) 1, available here)
But I have always taken for granted that any rational person could only see this as a problem, a critique, of the endeavor of international criminal trials.

Not so, apparently. On his blog “Security Dilemmas”, international relations scholar Seth Weinberger writes that
“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.”
Now, I would like to inquire what is “already known” about Milosevic–does Prof. Weinberger know whether/to what extent Milosevic was responsible for acts committed by Bosnian Serb forces in the Bosnian war, including the mass killings at Srebrenica? From what I have read about his trial, this seems to be far from clear–and this question is of high importance, because only by claiming that Milosevic controlled the Bosnian Serb Army was the OTP able to include the spectacular charge of genocide in the indictment of Milosevic.

Most importantly of course, the fact that a scholar would actually argue for the creation of “kangaroo courts” (i.e. show trials) is breathtaking to me. I can only hope that Prof. Weinberger is not using the term in its usual meaning.

To conclude, I am all for critiques of international criminal tribunals, but only if those critiques actually inquire into whether those tribunals achieve the goals set for them in the context of transitional justice (while also upholding defendant rights and fair trial guarantees). In this vein, I am looking forward to reading the Foreign Affairs article once it becomes available to me.

Meanwhile, Anthony Arend of the “Exploring International Law” blog provides a short and level-headed comment concerning the whole debate.

UPDATE: The article is now available here. More shortly


Blogger Seth Weinberger said...


Let me explain what I meant by "kangaroo" courts. It is exceedingly difficult to prove a political leader's involvement in the actions of his soldiers. All governments have the right to fight uprisings and maintain their territorial integrity. But, if in the course of using legitimate violence, an officer massacres a group of civilians, who is to blame? How can you prove that the political leader (Milosevic or Hussein) directly ordered the massacre or ethnic cleansing? Such orders are rarely written down. This is one of the reasons the trial of Milosevic has dragged on for so long; the absence of clear concrete evidence. It's also proving to be a problem in Hussein's trial, although prosecutors keep hinting that they are preparing to reveal something that proves Saddam's involvement.

So, should criminals go free because of evidentiary concerns? In domestic societies, yes. Procedural justice routinely trumps retibutive justice. But that's because it's easier to get sufficient evidence, so when the evidence isn't there, one's guilt must be doubted. That's just not true in these international tribunals.

Do we know that Milosevic and Hussein were responsible for the massacres of which they are accused. Yes. But perhaps not to the degree required by a court of law. And that's the point. International tribunals are not capable of providing procedural justice, nor should they be. Procedural justice is only important in a functional society with a strong rule of law.

27 February, 2006 19:50  
Blogger Bjoern Elberling said...

Thanks for clearing up the use of terms, Seth.

I must say that I still disagree with you on pretty much all levels.

First of all, remember that in the case of the Milosevic and Hussein trials, we are talking about criminal procedures which could lead to life imprisonment or, in the case of the Iraqi Special Tribunal, even capital punishment.
It is just inconceivable to me that one would prosecute a person without granting what you call "procedural justice" (which in this context is a fancy way of saying "basic human rights of criminal defendants") - this is not a question of "functional societies with a strong rule of law", but one of basic commitment to human rights.

(And btw, the backers of the tribunals in question would surely claim to be such societies anyway, so what you are arguing is that "internationalizing" their practice would allow them to do things that they could not do at home - quite a double standard, if I understood you correctly).

Second, I disagree with you on the facts: I do not "know" in any way that Milosevic is responsible for the Srebrenica killings, I find it well possible that this was an act of the _Bosnian_ Serb army/leadership over which Milosevic lacked any meaningful control. This is what I meant in my original post referring to what is "already known" - what we think is already known may just be untrue (forgive me for flogging a dead horse, but this is similar to how "we" once "already knew" that Iraq had developed and stockpiled WMDs).

Finally, given the massive ressources of international tribunals' prosecutors and the relaxation of evidentiary standards in international criminal trials, I just do not see that it is impossible for those prosecutors to find sufficient evidence of a crime where such crime was actually committed.

To sum up, claiming that "we" (whoever that is) "already know" that defendant X committed core crime Z (even if we cannot prove it "to the degree required by a court of law"), and thus we can do away with the usual requirements of criminal trials, is in effect a call for good old show trials for propaganda reasons - and I hope we can agree that those were not really "a good thing".

(Let me just reiterate for the sake of clarity that I find there might be some truth to what you are saying _as an empirical claim_ - international criminal tribunals may in some instances in some ways resemble kangaroo courts -, but that I am shocked by the _normative_ claim that this is a good thing)

28 February, 2006 14:46  
Blogger Seth Weinberger said...


Your last statement is one of the critical problems: attempts by individuals to overlay their personal morality or conceptions of justice onto situations that are not appropriate. International politics is not domestic politics; we do not and cannot, as much as we pretend we would like to, expect states or their leaders to behave according to the same rules of morality that we do in our personal lives. I refer to you Hans Morgenthau for a better explanation of this.

I just simply disagree with you about the trade-off between procedural and retributive justice. It is not the case, as you claim, that procedural justice is a fancy way of saying "basic human rights." There is no inherent reason that, for example, evidentiary chains must be established, or that hearsay should not be admitted. These are standards of justice that we accept in our domestic legal system, but that doesn't mean that they need be applied in an international setting. The situations are different, and the standards need be differetn as well. Note I am not saying to just string these guys up; I am saying that their guilt should be determined according to a different standard than in the legal system of a democracy. Think of the difference between a legal trial and a civil suit in the US; in the former, OJ was not guilty, in the latter, he was guilty (forgive the US references...I hope you know what I'm talking about. I wouldn't understand references to your country's legal system).

Finally, the real question is the source of legitimacy for justice. Is it the pursuit of ideals or the following of rules? In an established society, we prefer to follow rules that entrench our basic rights, even when those rules may violate our sense of justice. But international politics is simply a different beast. International law is powerless to prevent these actions from occurring in the first place. So why should it be expected to adhere to rules that do not fit the situation?

28 February, 2006 20:18  
Blogger Nicki Boldt said...

I am puzzled by some of the points brought forward in the discussion so far, so I have a few remarks on both positions and see forward to read your comments.

From our legal discussions I know that Björn and I disagree nearly as often as we agree (especially if it comes to politically loaded issues), but here I principally have to take his position.
Procedural rights ARE basic human rights that have to be observed by international courts, in my opinion the question is to what extend.
International law has to be seen as a legal order where there has to be some kind of coherence.
This has to be true especially with such highly linked fields as human rights and international criminal law. Seth (If I may) is right implying that the source of legitimacy for justice, especially in international criminal law, is the pursuit of ideals (And in contrast to Björn I do not have a problem with that position). These ideals however are expressed in the international human rights standards, which include procedural rights. (See Art. 6 ECHR; Art. 14 ICCPR ; Art. 8 - 11 UDHR) As Björn described it in a previous post international criminal law is "giving “bite” to human rights."
Where would be the coherence of international law if it raises procedural obligations in international human rights law and ignores them before international criminal courts? If procedural human rights are ignored in international criminal justice, the ideals Seth talks of are given away and thus there would be no legitimacy for that justice.

As I previously said the question is to what extend international courts have to observe procedural rights and here I have to take some steps towards Seths position. It seems obvious that international tribunals could not altogether fulfil the procedural standards applying to national courts.
At least, I am not sure about that but I think so, Seth probably would agree that there has to be some standard of procedural rights. The question is where to draw the line. It seems impossible for example that arrested persons see a judge immediately after the arrest and a relaxed standard, for the time a trial has to be conducted in, seems necessary. This question becomes critical however, where the necessity of evidentiary chains is concerned.

Another interesting point in Seths position is the differentiation between procedural obligations in national criminal court proceedings and in international ones. Seeing the rules on the ICC one has to see that the main burden of criminal justice in international criminal law lies now with the national courts. (Art. 17 Rome Statute) If those national courts have to decide on matters of international criminal law, what standards should they apply? If it is impossible to judge on cases of international criminal law while respecting the procedural guaranties, should they ignore these standards? But those courts definitely have to observe the human rights, so what should the national judges do? A rather strange situation.

01 March, 2006 01:56  
Blogger Bjoern Elberling said...

Okay, I'll weigh in once more, although I fear we are nearing the point where we just have to agree to disagree.

Seth, while some of our differences (especially concerning the difference between empirical and normative claims) may stem from following different "schools", I am not sure whether it can be boiled down simply to a difference of opinion between an International Relations Realist and a Legal Realist/Crit.

So let me say a couple of things regarding your OJ Simpson point: I totally agree that there can be different standards of proof (and different rules of evidence, which of course is not the same thing) for different sorts of trials. But if you take a look at those trials/courts that are out there, you will probably find that it is not a question of national: high standards, international: low standards.
Rather, you will probably find that pretty much all criminal procedures - be they national or international - require (at least on paper) proof beyond a reasonable doubt, while many non-criminal procedures - again on both levels - allow a lesser standard (if sometimes only because no precise standard is given).

So in this respect, the situation you described referring to the OJ Simpson trial exists in a similar manner in the international system. In other words: National criminal trials require proof beyond a reasonable doubt not because they are national trials, but because they are criminal trials.

And this is precisely where human rights of criminal defendants come into the picture, and these bind states in the national as well as the international sphere.
This is where I agree with Nicki: Of course international politics is/should be about ideals, and of course rights defending individuals against the potential abuse of state power in its strongest forms codify some of those ideals.
And that is why an international criminal trial that does not require proof beyond reasonable doubt is "a bad thing."

Mind you, I am not talking about the rules of evidence at the "lower level", I can see why one would want to allow certain types of evidence that one does not allow in (certain) national proceedings - in fact, this is probably the case with regard to, among others, the ICTY and the Milosevic trial, and I have already referred to this fact in my first comment. Anyway, claiming that certain parts of the rules of evidence need to be adjusted to the special situation of international trials is a far cry from calling for "kangaroo courts".

Of course, there are also other reasons why "establishing incredible events by credible evidence" is/would be the way to go, including avoiding the perception of victor's justice and thus allowing for a higher degree of legitimacy of the result reached etc.

Okay, that much for now.

01 March, 2006 12:26  
Anonymous Anonymous said...

In reading these comments, it seems that something that is being overlooked is that one of the articulated goals of the international criminal tribunals is to forward justice, peace and reconciliation in the devastated societies they have targeted. These societies, not the "international community" should be seen as the primary constituencies and beneficiaries of the work of these courts. What good are these courts if all they do is generate some international criminal law precedents for the use of future tribunals, but if each successive tribunal fails to have any meaningful impact on the post-conflict societies? Most Rwandans are barely aware of what goes on in Arusha b/c it was not until 2000 or so that the ICTR decided to spend any of its nearly $200 million a year budget on outreach activities in Rwanda to make its decisions and other developments known to the population. Similarly, Milosevic was mourned publicly by 50,000, none of whom seemed to have integrated the fact of his likely orchestration of/participation in the atrocities.

An international tribunal's procedural rules should be indeed be based on international standards as articulated in the relevant human rights treaties. The question is whether all defendants should be dealt with by international tribunals. What is justice as the communities effected by violence conceive of it? What is proper procedure in their formulation of procedure? It would seem that the most legitimate proceeding would be one found legitimate by the affected populations; they, after all, are the ones that must live with the consequences.

The question for me is one of allocation of resources. Having worked in the chambers at the ICTR and seeing the usual UN bloated bureaucracy and excessive spending, and then traveling to Rwanda and seeing the devastation of the country and the basic human needs of its population, I find it extremely hard to justify the ICTR's performance record (25 convictions). The Rwandan gacaca courts, with only 10 percent operating, have tried over 4,000 individuals in about one year (the national courts, which look more like Western courts, tried some 8,000 individuals before stopping). Critics of the gacaca, like Amnesty International, think they do not guarantee for due process as articulated by Art. 14 of the ICCPR; besides questioning whether in fact the ICCPR should be the ultimate measure of the gacaca's justice, think what could be done if we didn't insist on international solutions: just think what any postcolonial, late-developing, post-genocidal regime could do with ICTR's $1 billion donated in development funds. The money could be spent on all kinds of necessities, but it could also be earmarked for developing the judiciary, so that trials of genocide suspects could be carried out. The investment would have a far longer impact, however, because the improved courts would be there once the last defendant had been tried. When the ICTR closes shop in a few years, maybe 30-40 individuals would have been given some length of sentence to be served either in a fancy Hague or other European jail, or transferred, as Rwanda wants, to serve out the remainder of their sentences in Rwanda. Rwandans - suspected perpetrators and survivors - will still be living in a country that has lots of good uses for $1 billion.

On a related note, it's nice that we now have an ICC, but is it really best for the victims? Do we really need another bohemeth UN institution in Europe? I saw the growth impact of the ICTR on the local economy in Arusha - what kind of impact would such a permanent institution have in Africa? Currently, less than 20% of the ICC's permanent staff is from Africa, even though the first three cases are African-focused, and its likely that the future ones will come from Africa as well. Just think how many African lawyers could receive legal and other training through internships and paid positions at a permanent ICC in Africa.

The bottom line is that the problem with the tribunals is that their performance does not justify their price tags based on what they do for the victims and the survivors of the post-atrocity societies. The problem with much of the commentary on the tribunals is that they do not take the victims and survivors' perspectives and best interests to heart.

21 March, 2006 02:18  

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