An International Criminal Tribunal for the Former Guantanamo Bay?

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.

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Why creating a whole new international tribunal? It would be enough to use (not as a model, but as the actual thing) the Special Tribunal for Lebanon, already up and running with a full Office of the Prosecutor and a whole Registry. It would be enough to add a new Trial Chamber with a US component side by side with the existing one. For subject matter jurisdiction, US domestic law would be added to the Statute by Security Council Resolution after an agreement is reached by the US and the UN on this.
The evidentiary problems would still be there, clearly, but remember that the STL has a much more complex system than other existing tribunals and is supposed to be able to deal with anonymous witnesses (through an exhanced Pre-Trial Judge) and State security interests in a more flexible way than the ICC and the ad hoc Tribunals…Of course, no evidence gathered from ‘enhanced interrogation methods’ would be allowed in such a tribunal, but there must be (some) strong cases nonetheless among the ones considered. And some would be better than none…

Martin Holterman
Martin Holterman

No international tribunal has ever prosecuted conspiracy (other than to commit aggression) or material support for terrorism.

I’m not sure why that is a problem. Surely the international community can create a tribunal for anything they please? The only requirement is that the acts charged were already crimes at the time they were allegedly committed. (Nulla poena sine lege, etc.) Surely the acts these people would be charged with are undoubtedly illegal in all states on earth? In that case, I don’t see what legal principle would forbid the creation of an international GITMO terrorist tribunal, if the UNSC votes were there.

John C. Dehn

I saw this proposal and dismissed it almost immediately.  It has great intuitive appeal but is not practical in the great majority of “important” cases (I exclude grenade-throwing teenagers, drivers or bodyguards and others of a similar disposition) for reasons other than those raised by Kevin.  No international tribunal of which I am aware has yet faced truly complex national security evidentiary problems – a situation where the majority of probative evidence implicates the sensitive intelligence machinery of a state other than that of the defendant.  If one concedes that any evidence obtained after coercive interrogation would not be probative, and I would, then the fair – and I emphasize fair – trial of KSM and others would likely involve the disclosure of sensitive national security information.  It is inappropriate to assume that there is insufficient evidence of KSM’s guilt or the guilt of others prior to these interrogations.  There is a reason his capture was deemed essential.  Probative evidence of his involvement was collected.  That he was later tortured – from recent reports more with concern for future rather than regarding past attacks – does not diminish the probative value of this evidence.  However, one must know how this evidence was obtained to… Read more »


I think Prof. Dehn’s comments are extremely apposite.  Again, on national security interests, Rules 118 and 119 of the Special Tribunal for Lebanon’s RPE provide, in my view, one of the most innovative set of procedures to try and reconcile State concerns, on the one side, and the need for fair trials, on the other.  These provisions need not be recalled here, but can be easily found on the STL website – and a comment by Prof. Cassese at
Of course, any rule in this field can be criticised for being too lenient towards States’ claims of national security or too difficult for States to accept, but a balance needs to be found. The suggestion to use the STL for Guantanamo detainees was somewhat facetious, but my point is that Kevin’s concerns (as well as others) can theoretically be addressed satisfactorily before an international tribunal, if only the necessary political will was mustered.

New Stream Dream
New Stream Dream

I would be a little more concerned with said court letting someone go ala the scots.


The United States has a vested interest in the prosecution, and punishment of Terrorists who have killed or maimed US citizens.  Call it a “pound of flesh”, if you wish.  
International forums, and tribunals infected with Eurabian-United Nation arrogance, anti American sentiment, or the continental hypocracy of the “holier than thou” ilk,  when international murderers are involved, are simply not trusted by the US people to mete justice for US citizens.
I do agree that a Nurnberg type of public trial would be effective, as well as the Nurnberg manner of execution.