Symposium: Gordon Reply to Drumbl

by Gregory Gordon

[Gregory Gordon is Assistant Professor of Law at the University of North Dakota Law School and a conbributor to the Opinio Juris On-Line Symposium]

I think Professor Mark Drumbl’s perceptive comments highlight some of the serious tensions underlying the creation of an inclusive, internally coherent international due process that dispenses justice efficiently while upholding the human rights principles on which it is premised. By no means do I think the United States criminal procedure model, or the adversarial model in general, is without flaws (other systems tend to protect speedy trial rights more effectively, for example). But as observed by Professors Cassese and Zappalà, the adversarial system is designed to be more rights protective than the inquisitorial model. It also tends to be more rights protective than the traditional forms of indigenous justice, such as gacaca, referred to by Professor Drumbl.

But Professor Drumbl questions whether a system offering the highest levels of due process, as arguably embodied in the adversarial system, “should be the normative baseline in terms of its suitability for redressing atrocity.” He fears it might not, given its alien character and its imposition of “externalized justice” on victim societies. While I appreciate Professor Drumbl’s concerns for cultural authenticity and local integration, I would point out that mass victim societies are often trapped in cycles of violence that have culminated in atrocity and will likely perpetuate themselves absent external intervention. Part of that intervention, I submit, involves instituting systems of justice that respect the dignity of all human beings and heightened levels of due process for atrocity defendants are an integral part of that. In any event, such standards are not necessarily “alien.” Most of them are embodied in the International Covenant on Civil and Political Rights, to which most of the nations of the world are parties.

While it is true that the ICCPR does not include all of the due process rights to which I allude in my article, I advocate for a process of “hybridization.” The right to a jury trial, which incorporates notions of local peer review that Professor Drumbl seems to prefer, is a perfect example. Appropriately modified, it could be suitable (or indeed preferable) for international criminal adjudication. In this sense, I could not agree more with Professor Drumbl’s calls for incorporation of indigenous and traditional systems of justice into the international model.

I would caution, however, that to the extent the wells of traditional, indigenous justice have been poisoned by a culture of impunity, we should always keep our focus on the due process features mandated by bedrock principles of human rights. In my article, I point out that experts have generally classified justice systems into three separate categories: domestic legal justice, international criminal justice, and “hybrid” criminal justice, a term used to describe newly emerging forms of mixed national-international criminal adjudication as found in, for example, the Sierra Leone and proposed Cambodia tribunals. As specific domestic structures are grafted onto “hybrid” criminal procedure, my article does not include analysis of them within its scope. For purposes of my article, the term “international criminal procedure” is meant to encompass the rules developed by truly international courts (i.e., in addition to having multinational traits, not being moored to one specific domestic tradition), including the International Military Tribunal at Nuremberg, the ad hoc tribunals for the Former Yugoslavia and Rwanda, and the International Criminal Court.

While Professor Drumbl’s suggestions are clearly essential in considering the appropriate scope and nature of “hybrid” criminal justice, they may not always be suitable for “international” criminal justice. The latter is geared more toward the prosecution of “big fish” and is often better suited for adjudication outside the immediate zone of the crime scene. In that regard, the removal of Charles Taylor’s trial to the Hague is illustrative. The alternate sanctioning mechanisms suggested by Professor Drumbl – such as restitution, community service, re-integrative shaming, and reparations – may be appropriate for the legions of foot soldiers that will return to post-conflict society, but I submit they will not do for the Adolph Hitlers and the Théoneste Bagosoras. For such architects of genocide, I believe we should reject diluted “modalities of accountability that transcend the criminal trial” and eschew any proposals that dispense with “the correctional preference for sequestered incarceration.” And with respect to such criminal masterminds, in war-torn countries such as post-Nazi Germany or post-Interahamwe Rwanda, I submit that there can be no peace without justice.

By the same token, “local bottom-up justice approaches,” even for the foot soldiers, could lead to the Orwellian excesses of the Military Commissions Act of 2006 (MCA), which Professor Drumbl rightly condemns as inconsistent with the system of due process that governs penal adjudication in the United States. The MCA, which does away with such fundamental protections as habeas corpus, has created a no-man’s land of adjudication that adheres neither to the criminal nor to the traditional military paradigm of justice. We should be careful not to condemn atrocity adjudication in post-conflict societies to the same kind of twilight zone. In that sense, meaningful and robust due process is essential.

That said, we must, as Professor Drumbl persuasively argues, find ways to incorporate the best due process features of the different and varying indigenous systems into the international model. His wise suggestions will surely be part of molding the world’s disparate systems into an effective, inclusive, and lasting international criminal procedure.

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