Guest Post: Bidding for Justice

by Kevin Jon Heller

The following is a guest post by Lt. Col. Chris Jenks, the Chief of the International Law Branch in the Office of the Judge Advocate General. Lt. Col. Jenks is posting in his personal capacity.

A Canadian Court recently sentenced Désiré Munyaneza, a former Rwandan Army officer, to life imprisonment with eligibility for parole following his conviction in May for genocide, crimes against humanity, and war crimes he committed in Rwanda in 1994.  The prosecution was Canada’s first under its Crimes Against Humanity and War Crimes Act, which Canada enacted in 2000 to implement its obligations under the Rome Statute of the International Criminal Court.  Under the Act, a person who commits genocide, war crimes, and/or crimes against humanity, whether the offenses occur in or outside Canada, may be prosecuted.  There are temporal qualifiers to the Act’s grant of jurisdiction, one of which, and the basis for jurisdiction against Munyaneza, is that after the offenses are alleged to have been committed, the person is present in Canada.  Canada was the first states party to the Rome Statute to modify its domestic law and some, in Canada and the international community, are pointing to the prosecution as proof of a derivative benefit from the ICC and indicative of international criminal justice to come.  Certainly accountability and punishment for the heinous crimes Munyaneza both orchestrated and participated in is welcome and long overdue.  Yet the Munyaneza trial may be more cautionary than complimentary in augering the future of international criminal justice.  The trial lasted two years, required hearings in five countries, and estimates of its cost to date range up to $4 million, which does not include the cost of the appellate process or of incarceration, and Munyaneza reportedly will serve 21 years in confinement before being eligible for parole.  Some may respond that by ICTY or ICTR standards the Munyaneza trial was relatively quick and economical.  But that misses the point, implicit in the seemingly inexorable drive towards universal jurisdiction is the role of individual state action and responsibility.  But how much responsibility and thus cost should any one state assume?  Similarly, what are the implications of, and for, a state which assumes too much?

The Munyaneza case alone has already consumed roughly a quarter of the $15.6 million annual budget of Canada’s War Crimes Program.  To its international credit, but fiscal detriment, in the week following Munyaneza’s sentencing Canada announced the second use of its CAH and War Crimes Act. Following a six year investigation, Jacques Mungwarere, a Rwandan national living in Ontario, was charged with genocide stemming from his role in the 1994 massacres.  For some perspective, the Canadian Centre  for International Justice estimates that there are approximately 1,500 war criminals from various conflicts currently living in Canada.  If Munyaneza, and now Mungaware’s multi year investigation, are indicative of required due process norms and the associated costs of meeting those norms, where does that leave Canada, let alone the majority of the international community which can’t afford such investigations and trials?  And what does that say about the norms?  Perhaps the majority of the international community will remain on the outside of the process, meaning, for example, justice for crimes committed by and against Rwandans, in Rwanda, administered elsewhere, in this case, Canada.  Alternatively, states may remain involved in the process and attempt to outsource the cost of justice, as with Senegal’s claim it would delay the trial of former Chadian President Hissene Habre pending receipt of roughly $38 million for the trial.  As unpleasant as those options sound, the alternatives seem even worse.  Laudable though the trial was on many levels, Munyaneza clouds more than clarifies the road ahead for international criminal justice.  Instead, the way forward requires an uncomfortable discussion on reassessing due process  norms and how much justice the international community can afford or impunity it can tolerate.

http://opiniojuris.org/2009/11/14/guest-post-bidding-for-justice/

6 Responses

  1. I published Lt. Col. Jenks’ post, so I’ll exercise my editorial privilege and comment on it first.  I agree that the cost of trials at the ICTY and ICTR is not the appropriate comparison, but $4 million for the trial of a genocidaire just doesn’t seem particularly excessive to me.  Yes, it’s more than 25% of Canada’s budget for war crimes — but doesn’t that simply indicate that the War Crimes Program is ridiculously underfunded?  $15.6 million is .00086 of Canada’s $18 billion defense budget; if Canada quadrupled the Program, it could afford 16 trials, at the cost of .0034 of its defense budget.  And if five other industrialized western countries did the same even once, at the cost of roughly $60,000,000 each, that would be 96 war-crimes trials in one year alone — more trials than the ICC will be able to hold over the next few decades.  Such a comprehensive international effort to combat impunity would, I think, have a deterrent effect beyond the wildest dreams of even the most fervent supporters of international criminal justice.

  2. Response…Many thanks to Kevin and Opinio Juris for the opportunity to comment.  I think Kevin raises a good point about the Munyaneza prosecution cost as a percentage of Canada’s war crimes office budget–the budget should be increased.  Funding for Canada’s war crimes program remains at $15.6 million, the level set in 1998.
    http://www.cbsa-asfc.gc.ca/security-securite/wc-cg/wc-cg2007-eng.html
    Kevin extrapolates modest budget increase by Canada, and Canada’s laudable efforts replicated by even a small number of western countries leading to a real deterrent effect. I am in full agreement, but also submit that would just heighten the tension I in-artfully attempted to describe.  What does it say about international criminal justice norms if only a small number percentage of the world can meet those norms?  I submit the current normative construct and its cost widen the gap between western countries and the rest of the world, the unfortunate result being that criminal justice seen as more relative than international. 

  3. I’m just shocked that Canada is now prosecuting crimes that occur outside its border and by people that are not citizens or residents at the time the crime was committed.  Then again, since so many American criminals flee to Canada, maybe this will serve to make a few people think twice before crossing the border.

  4. It’s time to start thinking about shared funding models for extra-territorial jurisdiction investigation and trials. 

    Crimes against humanity are deemed to be NOT crimes that are committed in a particular state.  Yet the costs fall solely upon the state on whose shores the suspect happens to wash up.  This gives prosecution and international crimes some of the characteristic of a global public good:  the benefits can not be easily confined to the purchaser (the analogy is not perfect – but will do for now).  This leads to under-consumption – i.e. less trials than otherwise; free-riding as other countries hold back and expect others to step in; and resentment at such free-riding from those who do pay.  

    There are two immediate possibilities for such co-financing:
    1. Senegal’s bill for the Habre trial is almost certainly too large; but hopefully the appointment of a former registrar from an international tribunal will help settle what is a realistic cost.  If it proceeds we could hope to see the Senegal trial as a testing ground for international financing of a extra-territorial trial for international crimes.  It could be the model for development agencies to fund such investigations/trials/incarceration in developing countries.

    2.  There may be some scope within the EU for some shared financing of, say, witness protection / relocation schemes during the EU member states’ increasing number of trials of overseas war crimes suspects.

    I don’t think such funding schemes will close the gap between the sheer number of potential suspects and the paltry number of trials that Chris identifies – with all the implications that he identifies – but its a step in the right direction.

    I’m interested in working up further details of such schemes – so if others want to collaborate please do contact me at the Aegis Trust.

  5.  

    I truly believe that each state should be responsible to prosecute his own nationals and only in cases in which the own State is unable to prosecute, then an International Court should be the option, cases like Munnyaneza shows the complexity of a third country involved in judicial proceedings that belongs to another Country.
    Four million taxpayer Canadian dollars spent on a trial!  That amount of money will definitely provide training to   the whole judicial system in Ruanda and probably some other African countries if need it.

    Yes, there is a universal jurisdiction, but there could be a better use of resources.

    Today we can see cases like in Guatemala in which a former military commissioner became the first person to be convicted of the forced disappearance of people in Guatemala’s 36-year civil war, sentenced to 150 years in prison.
    Guatemala’s own courts with panel of three judges found former military commissioner Felipe Cusanero guilty of the disappearances of six peasant farmers between 1982 and 1984. Almost a quarter of a million people, mainly poor Mayans, were killed during the 1960-1996 conflict between leftist guerrillas and the government.
    Legal experts say it is the first time anyone has been convicted for forced civil war disappearances in Guatemala.

    In Chile, Investigating Judge Montiglio issued arrests warrants for 129 former associates of the secret police (DINA), accussed to forcibly disappear suspect opponents of the government of General Augusto Pinochet.

    These are extraordinary examples of success of the local judicial systems, that take responsibility of their own future, I just hope that Countries that suffer from certain regimes like in Cuba or Venezuela, in the future they will be able to prosecute leaders that generate human rights violations or in the case of Colombia to prosecute Leaders of guerillas that systematically violates human rights.

    In the other side of the spectrum, like in Sierra Leone, when necessary the Government of Sierra Leone asked for United Nations assistance to establish a court in Sierra Leone, combining local and foreign prosecutors and judges in order to ensure independence and impartiality. On 14 August 2000, Resolution 1315 was adopted requesting the Secretary-General to negotiate an agreement with the Government of Sierra Leone for the creation of “an independent special court”.

    Today, hopefully the International Criminal Court, as an independent and specialized Court, will hear cases and decide cases neutrally so other Countries will not have to hear International cases in National Courts.

  6. Response…Germany has just entered the fray as well, announcing the arrest of two Rwandan militia leaders in Germany for war crimes/CAH in the DRC.

    http://news.bbc.co.uk/2/hi/africa/8364507.stm

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