Damning International Tribunals with Faint Praise

by Kevin Jon Heller

I had planned to lurk on the sidelines until the discussion of Ben’s fascinating book moved to the “need” for a new interrogation statute — I, for one, am more than happy to have “interrogation laws that operate only at the highest altitude (nothing cruel or inhumane, nothing that causes severe pain or suffering) but never come down to earth,” if by the tendentious expression “at the highest altitude” we mean “consistent with the Torture Convention.”  But I couldn’t let the following comment go, even if it is just an aside in Ben’s response to Peter:

And the more I think about it, the more I suspect that international criminal tribunals–which can get away with not offering defendants the range of procedural rights guaranteed by the Bill of Rights–may be part of the answer to the problem of terrorist trials.

This is the standard neoconservative canard concerning the ICC — though with the added twist that Ben seems to believe that, at least in terms of prosecuting terrorists, the alleged lack of due-process protections at the ICC would be its strength, not its weakness.  I recognize that Ben is trying to be magnanimous here toward international law, which plays (as both Peter and Peggy have noted) a very small role in his book.  Nevertheless, the comment is both disturbing and misleading.  It’s disturbing, because it suggests that the utility of the ICC and other international tribunals would be positively correlated with their unfairness — the greater the resemblance between an international tribunal and the the kangaroo courts (CSRTs, military commissions) favored by the Bush administration, the more useful the tribunal.  And it’s inaccurate, because — to quote Monroe Leigh, Kissinger’s legal adviser at the State Department — “[t]he list of due process rights guaranteed by the Rome Statute are, if anything, more detailed and comprehensive than those in the American bill of rights.”  Indeed, a defendant at the ICC is guaranteed timely notice of the charges against him, the presumption of innocence, the right against self-incrimination (including a prohibition on adverse inferences from its assertion), the right to counsel, the right to an interpreter, the right to bail, the right to a speedy trial, the right to conduct a defense in person or through counsel, the right to cross-examine witnesses against him and to call witnesses on his behalf, the right to disclosure of exculpatory evidence, proof beyond a reasonable doubt (including the right not to have any burden of proof shifted to him), and the right not to be subjected to any form of duress or coercion or any cruel, inhuman, or degrading punishment.  The Rome Statute even guarantees Miranda-like warnings — and requires them whenever there are grounds to believe the suspect committed a crime, not (as in the US) simply when he is subjected to custodial interrogation.

That said, there are two basic differences between the Rome Statute and the Bill of Rights, both of which reflect the influence of the civilian tradition on the Statute (and on the Statutes of the other international tribunals): the absence of a right to trial by jury, and the right of the prosecution to appeal an acquittal.  There is no evidence to suggest that judges would be more conviction-prone than juries in terrorism cases; indeed, given laypersons’ understandable fear of terrorism, the opposite is far more likely to be true.  That leaves only one difference that supports Ben’s argument, appeals from acquittals.  Personally, I prefer the common law — I don’t think it’s fair to subject a defendant to literally years of legal proceedings before he learns his ultimate fate.  But I doubt that the right to appeal an aquittal has had more than a negligible impact on the international tribunals’ conviction rates; to the best of my knowledge (and readers should correct me if I’m wrong), only one Appeals Chamber (in East Timor) has ever convicted a defendant who was acquitted on all counts at trial — in the vast majority of cases, an Appeals Chamber has simply reinstated some acquitted counts for a defendant who was otherwise convicted.

The ICC, in short, is the model of procedural fairness.  That may, for Ben, disqualify it and international tribunals like it from being “part of the answer to the problem of terrorist trials.”  But if international tribunals can only be part of the answer by striving to achieve the level of unfairness already achieved by the CSRTs and military commisisons, they are better off remaining part of the “problem.”

http://opiniojuris.org/2008/07/28/damning-international-tribunals-with-faint-praise/

2 Responses

  1. The lack of discussion of international law by national security law experts in the United States is so endemic.  On the other hand, it is profitable as the persons with power and authority who seek their advice also make a virtue of limited knowledge of international law – almost a badge of honor.

    How about if American citizens take a step beyond their impoverished leadership and insist that international law be applied in settings because as we are the fathers and mothers of those who get sent to die, upholding rules that protect them is important to us.  We might call it citizen’s international law reciprocity in contradistinction from leader caste/class obliviousness to this entire part of our law.

    Best,
    Ben

  2. Excellent comment Kevin.

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