An International Criminal Tribunal for the Former Guantanamo Bay?

One of my favorite ICL scholars, Guenael Mettraux, recommends precisely that in a recent New York Times op-ed.  Here is the core of his pitch:

The Guantánamo detainees pose a similar conundrum today. Trying these men stateside would necessarily require the compromise of long-cherished principles of American law. Yet continuing to hold them without the prospect of a fair trial or delivering them to undemocratic governments are alternatives not worthy of the Obama administration or of the United States.

America’s own endeavors at Nuremberg offer a way out of this impasse: an international tribunal for detainees. Such a tribunal would allow the Obama administration to finally try these individuals and close down Guantánamo — and it would bring the nation back within the tradition of law and justice that it so forcefully defended six decades ago.

We need not look as far back as Nuremberg. Recent international tribunals for Sierra Leone, Cambodia and Yugoslavia have provided fair trials in challenging political environments to men and women accused of the gravest of crimes. In The Hague right now, an international criminal tribunal is looking into the terrorist attacks that shook Lebanon in 2004 and 2005. This tribunal — created by the United Nations Security Council at the initiative of the United States, among others — provides a ready model of a court capable of dealing with the detainees.

Those now held in Guantánamo would be placed under international control and their trials held on neutral ground. American and foreign judges and prosecutors with experience in international criminal cases would then be enlisted to provide the expertise required to hear these types of criminal cases. As with the Special Tribunal for Lebanon, it would be paid for by a combination of American contributions and voluntary donations from other nations.

I completely agree that the international community would view international prosecutions as far more legitimate than domestic US prosecutions — to say nothing of the trials held by the discredited and widely-reviled military commissions.  But I am very skeptical that an international tribunal is a realistic possibility, either politically or legally.

On the political side, I think the odds are vanishingly small that the international community would be willing to create a tribunal that could prosecute detainees but not the Americans who tortured them, ordered their torture, and rationalized their torture. Why should they participate in such one-sided justice, when the US has shown absolutely no willingness to abide by an international convention — the Convention Against Torture — that the US and 145 other states have ratified? I don’t see the upside for the international community, particularly given how expensive and difficult it is to create an international tribunal, even one of the hybrid variety.

I also fail to see how an international tribunal would solve the significant legal problems that the US faces in prosecuting the detainees.  Two such problems loom particularly large: (1) much of the evidence against many of the detainees was obtained via torture and other forms of cruel and inhuman treatment; and (2) many of the detainees are charged with conspiracy, “murder in violation of the law of war,” and material support for terrorism, which are not actually war crimes.

The first problem could not be solved by prosecuting the detainees internationally.  No international tribunal has ever admitted, or would ever admit, evidence obtained via “enhanced interrogation methods” that violated the Torture Convention.  Article 69(7) of the Rome Statute, for example, provides that “[e]vidence obtained by means of a violation of… internationally recognized human rights shall not be admissible if (a) The violation casts substantial doubt on the reliability of the evidence; or (b) The admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings.” Coerced evidence obviously fails both prongs of that test.

The second problem is also likely intractable.  No international tribunal has ever prosecuted conspiracy (other than to commit aggression) or material support for terrorism. Terrorist acts can qualify as war crimes, as established by the ICTY in Galic, and they can also qualify as crimes against humanity when committed as part of a widespread or systematic attack on a civilian population.  Could the actions of “problem” detainees be recharacterized as “true” acts of terrorism?  Were they committed during armed conflict or part of a widespread of systematic attack?  I’m dubious, if cases like Hamdan’s — which involved attacks on US soldiers and providing “bodyguard” services to bin Laden — are indicative of the allegations against the other detainees.  And even if some of the allegations could be recharacterized, I doubt that the numbers would be sufficient to justify the creation of an international tribunal.

To be sure, the second problem could be addressed by creating an international tribunal like the Special Tribunal for Lebanon, which applies the Lebanese Criminal Code instead of substantive international criminal law.  In theory, a Guantanamo tribunal could prosecute domestic US crimes rather than war crimes or crimes against humanity.  But that would still not solve the political and evidentiary problems discussed above.  And I imagine conservative American legal scholars would be apopolectic at the spectacle of a bunch of pointy-headed foreign judges — perhaps even French ones! — interpreting and applying American criminal law.

Creating an international tribunal for Guantanamo is an intriguing idea.  Alas, it’s also an impracticable one.

Hat-Tip: John Louth of Oxford University Press.