International Justice on an Uneven Playing Field
In his book "With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful," Glenn Greenwald writes, "Those with political and financial clout are routinely allowed to break the law with no legal repercussions whatsoever. Often they need not even exploit their access to superior lawyers because they don't see the inside of a courtroom in the first place—not even when they get caught in the most egregious criminality." Greenwald is referring specifically to the United States. He references President Gerald Ford's pardoning of Richard Nixon after Nixon broke domestic and international laws. He discusses how the high-level offenders involved in the Iran-Contra affair from the administrations of Ronald Reagan and George H. W. Bush not only received immunity from prosecution, but also were rewarded with high-profile posts in the George W. Bush administration. Greenwald also outlines the "too big to jail" status that the kings of Wall Street have enjoyed since collapsing the international financial system in 2008, and juxtaposes this against the harsh jail sentences that come to lower-class criminals for much lesser offenses. The United States is the country where California's three-strikes law has put men in prison for life for crimes as miniscule as stealing a pair of socks, while war criminals like George W. Bush and Henry Kissinger get to sit in the owner's box at Dallas Cowboys games. While the law is meant to be the great equalizer between the top and bottom strata of society, those with power and influence repeatedly circumvent justice. They have managed to tilt the playing field in their favor.
This uneven playing field extends to the arena of international justice as well. Powerful leaders who violate international law, such as George W. Bush or Tony Blair, serve out their terms and continue walking the halls of power without consequences for their actions. Their states' grip on international financial institutions, military dominance and permanent seats on the U.N. Security Council ensure this impunity, rendering international actors impotent in bringing these men to account. For less powerful human rights abusers, their fate is less certain. In fact, several perpetrators have been held accountable recently in various capacities. A court in Senegal was inaugurated in February to prosecute former Chadian dictator Hissène Habré for thousands of political killings and systematic torture between 1982 and 1990. In the same month, a court in Norway convicted a Rwandan man living in Norway for his role in the genocide that took place in Rwanda in 1994. Also in the same month, a war crimes tribunal in Bangladesh sentenced Abdul Quader Molla to life in prison for mass murder and other crimes committed during Bangladesh's liberation war. And in March, former Guatemalan military dictator José Efraín Ríos Montt was put on trial for genocide and crimes against humanity in a domestic court.
As cases like these continue to emerge, and as the International Criminal Court (ICC) further establishes itself as a legitimate—albeit controversial—international court, it is appropriate to ask, who can effectively bring charges against whom? What conditions must be present for accountability to be possible?
Kathryn Sikkink categorizes three types of prosecutions that can be used to hold human rights abusers accountable. The first is international prosecution, which occurs when states set up tribunals, typically through the United Nations. The ICC is an example of this type. The second type is foreign (or transnational) prosecution, whereby a state uses its domestic courts to prosecute an official from another state. When amnesties prevent trials at home, human rights activists often seek justice in foreign courts. The most famous of this type is the case that Spain and the United Kingdom brought against former Chilean dictator Augusto Pinochet in 1998, which crystallized the term "universal jurisdiction" in the international legal lexicon. The third type is domestic prosecution, such as the Ríos Montt trial in Guatemala. Domestic prosecution is the most common type, but that doesn't mean it is the easiest. It can take decades for political conditions to stabilize enough so that domestic trials are possible. Ríos Montt, for example, is being tried for crimes he committed 30 years ago, and the case is still being met with new judicial and political obstacles.
While the conditions that make prosecution possible vary wildly from case to case, Chandra Lekha Sriram identifies a number of determining factors. One is the level of international involvement. In the Pinochet case, for example, Spain allowed Pinochet to be extradited back to Chile after he was arrested, but the amount of international attention attracted in the process helped galvanize the domestic movement in Chile—a movement that eventually succeeded in stripping high-level offenders of immunity, putting those offenders on trial, and reforming Chile's judicial system. Other factors include the balance of forces between a ruling regime and its opposition; the nature of abuses, repression, and civil strife; and the endurance and efficacy of human rights organizations and human rights lawyers. Depending on the mix of these factors, a number of approaches can be taken and a number of outcomes can occur. The politics involved in these cases often complicates matters immensely.
Justice Versus Peace
An ongoing debate has centered on the question of whether pursuing justice jeopardizes peace, especially in cases where a state is undergoing transition and the state's stability is fragile. ICC cases are often cited by those who argue that justice can threaten peace. When the ICC issued an arrest warrant for Sudanese President Omar al-Bashir in 2009, some argued that the timing was ill advised because the arrest warrant would make al-Bashir exit the peace agreement between Sudan and the southern rebels, which would lead to more violence. Leslie Vinjamuri writes that, since the arrest warrant was issued, "Bashir has been successfully re-elected to power, traveled extensively, and received steady support from his African Union allies. Meanwhile, the most immediate and devastating consequence of the ICC's arrest warrant was that Bashir forced several leading international humanitarian nongovernmental organizations out of the country for allegedly cooperating with the ICC." Similarly, when the Ugandan government invited the ICC to seek prosecution against the Lord's Resistance Army (LRA) in 2003, some argued that this kept Joseph Kony and other LRA leaders from entering peace talks. For these reasons, Vinjamuri believes that justice must be backed by military force. She points to the arrest warrant issued against Libya's Muammar Gaddafi, which was backed by a NATO air campaign.
While these difficulties are undeniable, those on the other side of the debate argue that justice is essential to peace. Rosalina Tuyuc, co-founder of the National Council of Widows in Guatemala, can speak personally to this issue in Guatemala, where more than 200,000 people, mostly indigenous civilians, lost their lives in the conflict that lasted from 1960 to 1990. "As someone who works with scores of women who are also survivors," Tuyuc says, "I can say with certainty that it is impossible to achieve reconciliation and forgiveness in Guatemala without holding government and military officials accountable for their actions." Granted, discussing domestic trials in countries that have had years to stabilize, on the one hand, and ICC arrest warrants for leaders who are still in power, on the other hand, makes for a messy comparison. But Sikkink has researched this debate holistically. She studied 100 transitional countries and found that, holding other factors constant, countries that have held human rights prosecutions have subsequently become less repressive than those that have not. Countries that have held prosecutions, like Argentina and Chile, have exhibited lower levels of torture, summary execution and political imprisonment, whereas countries that have foregone prosecution, like Brazil, have exhibited higher levels of violence.
Ríos Montt, Guatemala
This year former dictator Ríos Montt became the first head of state in the Americas ordered to stand trial for genocide and crimes against humanity. The charges focused on crimes committed during 1982 and 1983 in the Ixil Triangle area of Guatemala. The Nation reports, more than 100,000 people "are believed to have perished during the scorched-earth campaign carried out in the early 1980s when Ríos Montt and, prior to him, Romeo Lucas García served as de facto heads of state." Last January, Ríos Montt lost his immunity, which he held as a member of Congress, and he was arrested shortly thereafter. His lawyers tried every possible defense—from an argument that he had not known what was happening in the Ixil Triangle to the explanation that the killings had happened in the heat of battle—to no avail. The development was a remarkable one for the region. Unfortunately, the proceedings suffered a major setback last week when an appeals court suspended the trial just as it was nearing a conclusion. Judge Carol Patricia Flores, who had been suspended from the case in 2012 and then reinstated, ordered that all proceedings that took place in her absence be nullified—including painful testimony from more than 100 witnesses. The move, which many suspect was politically motivated, has sparked an international outcry. Prosecutors will appeal Flores' decision.
I spoke with Reed Brody, counsel and spokesperson at Human Rights Watch, after he returned from observing the beginning of the trial in Guatemala. Asked what he thinks is necessary for prosecution generally, Brody says, "I think the first thing it requires is victims or human rights organizations, or both, who are willing to push this, make it an issue, and even face sacrifices to make it happen. Otherwise these cases would just go away; none of them are convenient politically." He continues, "But then you need something more. In Guatemala it would have been inconceivable to do this 15 years ago, but you have the peace agreements and you have the sustained effort by the international community to reform the justice system. You have a political opening, and you have a very brave attorney general who comes from the human rights movement and who is somewhat untouchable, who the president can't just get rid of, because it would bring the wrath of the international community down on him."
Brody spent 14 years playing a central role in trying to bring former Chadian President Hissène Habré to trial. This was a transnational case, and Brody says, "It looked like it was going nowhere for a long time. Then you had an election in Senegal that brought to power a new president who said, 'I'm gonna prosecute this guy.'" Brody worked with victims and human rights organizations in Chad designing and implementing political and legal strategies; met with heads of state and the U.N. human rights commissioner; wrote grant proposals and drafted legal papers; and helped victims find healthcare, food, and asylum. When Senegal inaugurated a special court in February, it marked a turning point in the long campaign to bring Habré to justice. It took the work of a large international coalition of human rights organizations for this to happen. It also took Macky Sall being elected to president in April 2012; the order from the International Court of Justice for Senegal to prosecute Habré or extradite him; and an agreement between Senegal and the African Union on a plan to conduct the trial within Senegal's judicial system. Habré is accused of thousands of political killings and systematic torture between 1982 and 1990, and has been living in exile in Senegal for 22 years.
Brody says that the Chad case, like so many other cases, seemed very unlikely to prosper at first. "In each case, it's the tenacity and the perseverance of the victims and the human rights groups that have kept these cases alive and forced the courts to deal with them," he says. "It's not enough to have the victims and the human rights groups, but that's what keeps it going while the political conditions are created to make it happen."
International Crimes Tribunal, Bangladesh
In 2010, Bangladeshi Prime Minister Sheikh Hasina set up the International Crimes Tribunal (ICT) to investigate war crimes and genocide committed during Bangladesh's 1971 liberation war in which about 3 million people died. This year the ICT has issued verdicts and sentencing that have resonated across the country. In February, two leaders of the Islamist party Jamaat-e-Islami received sentences. Abdul Quader Molla was sentenced to life in prison, and Delawar Hossain Sayeedi was sentenced to death. These verdicts have caused massive protests and unrest. According to Bangladeshi human rights watchdog Odhikar, more than 100 people died between Feb. 5 and March 7 in a "killing spree" by security forces. At least 67 of those people were killed after Sayeedi's sentencing was announced. As for Jamaat, The Economist writes, "Jamaat has been behaving more like an insurgency than a political party. Thugs have used children as human shields, attacked Hindu homes and temples and hacked policemen to death. … The violence saps hope that a public act of vengeance against Jamaat, delivered through a broken justice system, might inspire some sort of catharsis for the country." The New York Times adds, "The protests for and against Jamaat have convulsed Bangladeshi politics, demonstrating that the country has still not healed from the bloody 1971 conflict."
While the ICT initially received widespread international support from the United Nations, the European Union and human rights groups, the ICT has since been heavily criticized for lack of transparency, fairness and oversight. The International Commission of Jurists says that there have been serious procedural flaws at all stages. "Pre-release has been routinely and arbitrarily denied; witnesses have been abducted and intimidated; there have been credible allegations of collusion between the government, prosecutors and judges." As just one example of the flaws in judicial proceedings, of the three judges who sentenced Sayeedi, one heard only some of the prosecutor's evidence, and the other two heard none of it. Critics accuse the ICT of acting as a government appendage bent on settling a domestic score against those who assisted the Pakistan military in the 1971 conflict.
This kind of biased prosecution can be found elsewhere. After Georgian Prime Minister Bidzina Ivanishvili was elected last October, he set about prosecuting former officials for crimes like corruption and torture. Ivanishvili campaigned on the promise that he would prosecute these offenders, but it is no accident that the officials charged were all political rivals. A similar one-sided justice unfolded in Côte d'Ivoire following post-election violence in 2010. The violence began when President Laurent Gbagbo lost the election to Alassane Ouattara and refused to relinquish the presidency. After his inauguration in May 2011, Ouattara pledged to bring to account all those responsible, and in November 2011 Gbagbo was transferred to The Hague on an arrest warrant from the ICC. Prosecutors have since charged more than 150 individuals for crimes committed during the post-election violence, and yet none of those charged come from pro-Ouattara forces.
Controversies surrounding the ICC are numerous and complex. At the top of the list is the fact that all eight of the open ICC cases are in Africa, which has prompted African leaders to accuse the ICC of bias in the least and a Western imperialist agenda in the extreme. The ICC defends itself by pointing out that it is a court of last resort. It can exercise jurisdiction only when states are unable or unwilling to prosecute offenders themselves. Kenya's case of post-election violence was referred to the ICC only after Kenya failed to set up a domestic tribunal. African countries have also been more willing to refer cases to the ICC. Of the eight current cases, four were referred to the Court by their respective countries (Democratic Republic of the Congo, Uganda, Central African Republic, Mali). The ICC has begun investigating whether it would have jurisdiction in places like Afghanistan, Colombia, Georgia, Honduras and Palestine, but those investigations are preliminary. The Court began operating in 2002, so much of its protocol and identity is still being determined. The politics and funding behind the court create some of the controversy and complexity. For instance, the United States is not a state party to the ICC, and yet the United States campaigned for the ICC to indict Congolese rebel leader Bosco Ntaganda, adding Ntaganda to its "War Crimes Reward Program" earlier this year. The United States can also exert influence through its permanent seat on the U.N. Security Council, which can refer cases to the ICC. And although the ICC is funded primarily by state parties, it can also receive contributions from governments, international organizations, individuals and corporations.
One of the advantages of the ICC is that it can indict criminals who are still in power. It doesn't need to wait for a transition. However, operating in real time also creates steep challenges. It was a strange sight when Uhuru Kenyatta was sworn in as Kenya's president this month, since Kenyatta and his deputy president William Ruto currently face charges from the ICC for their roles in the 2007 post-election violence in which more 1,000 people were killed and 6,000 forced from their homes. Kenyatta and Ruto have been voluntarily attending ICC proceedings, but witnesses and their families in the Kenya cases have been pressured and intimidated. The ICC prosecutor has indicated that one of the reasons that charges were dropped against Francis Muthaura, who was accused along with Kenyatta, is that witnesses were afraid to come forward. And of course, challenges for the ICC get much steeper when violence is ongoing, such as in its case against top members of the LRA for massive atrocities committed in Northern Uganda and surrounding areas. The LRA has been waging its brutal campaign since 1987, tens of thousands of civilians have been killed, more than 1.5 million people have been displaced, and several attempts at peace negotiations have failed. Yet when the case was referred to the ICC, a number of interests groups, government factions and victims urged the ICC to forgo prosecution, arguing that it would sabotage the amnesty and reconciliation process and prolong the war. A member of the Acholi Religious Leaders' Peace Initiative in Uganda says, "Nobody can convince a rebel leader to come to the negotiating table and at the same time tell him that when the war ends he will be brought to trial." In these situations, there is no clear-cut path for the ICC to take. As the Court further establishes itself, it will be forced to weigh the numerous and unique considerations that accompany each particular case.
In 2002, George W. Bush selected former U.S. National Security Advisor Henry Kissinger to head a commission to investigate the 9/11 attacks. Bush said that Kissinger would bring "broad experience, clear thinking and careful judgment" to the task. This is the same Kissinger who in the 1970s was responsible, either directly or indirectly, for human rights abuses in Chile, Indochina and East Timor—crimes for which he has never been held accountable, connected as he is to the levers of power and influence. As David Corn puts it, "Asking Henry Kissinger to investigate government malfeasance or nonfeasance is akin to asking Slobodan Milosevic to investigate war crimes. … Moreover, he has been a poster-child for the worst excesses of secret government and secret warfare." Kissinger later removed himself from the position to avoid conflicts of interest related to his many ties to organizations and public figures, but the appointment itself was astonishing, as it demonstrated how twisted the mechanics of truth and justice seeking can be.
Sikkink argues that significant progress has been made in recent decades in holding individuals accountable for human rights abuses. In a process of norm diffusion that she calls the "justice cascade," the number of prosecutions has increased and accountability mechanisms have shifted toward legitimacy. She points to the time period around the turn of the century as the tipping point for this cascade. In 1998, the Rome Statute of the ICC was completed; also in 1998 Pinochet was arrested in London; and in 2001 Milosevic was turned over to the International Tribunal for the former Yugoslavia. Ever since, states, activists and international institutions have begun to rethink what is possible in terms of international justice. However, as heartening as this progress has been, realpolitik still dictates that those with power play by a different set of rules than those without. As Brody puts it, "Justice is slowly, unevenly moving forward. The selectivity does tarnish the entire enterprise."
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