CFR Study Advocates National Prosecutions for International Crimes

by Duncan Hollis

My former State Department colleague, David Kaye, now the Executive Director of UCLA Law’s human rights program, has just authored a study under the auspices of the Council on Foreign Relations (John Bellinger and Matt Waxman also particiapted in the effort as Directors).  Kaye acknowleges the contributions made by the likes of the ICTY, ICTR, and ICC, but argues that more work is needed at the national level to supplement the international criminal law process.  Here’s a summary of the pitch:

Yet, after more than two decades of experience, the limits of these [international] courts’ capabilities are becoming clear. While they have brought some senior leaders to justice, the scope of the courts’ budgets and their enquiries can never reach all—or even most—perpetrators of atrocities. They are physically far removed from the scenes of the crimes they are prosecuting, cannot compel evidence or conduct independent investigations, and are vulnerable to changes in funding and international political support.

To overcome these and other difficulties, the international community must place greater emphasis on strengthening the national justice systems of the countries where atrocities have occurred. In this Council Special Report, David Kaye examines existing international justice mechanisms, analyzes how they have succeeded and where they have failed, and explains what reforms national legal systems will require to secure just and peaceful outcomes. Cognizant of the myriad individual challenges facing countries experiencing or emerging from violent conflict, Kaye nevertheless identifies a core set of common needs: political pressure on governments reluctant to prosecute perpetrators; assistance in building legal frameworks and training legal officials; support for investigations, including forensic analysis and security sector reform; and creating belief in the justice system among the local population.

To these ends, Kaye outlines several recommendations for U.S. policymakers and their governmental and nongovernmental partners worldwide. Beginning in the United States, Kaye argues that Washington should expand diplomatic and financial support for national justice systems and appoint a senior official to oversee initiatives from the State Department, Justice Department, USAID, and other agencies. Abroad, he calls for the secretary of state to organize a donor conference to agree on funding priorities and responsibilities for the international community, and to establish a coordinating body to ensure that support for national-level justice systems is properly coordinated and informed by best practices.

You can download the full report here.

http://opiniojuris.org/2011/06/06/cfr-study-advocates-national-prosecutions-for-international-crimes/

4 Responses

  1. From the summary, it is notable that all the recommendations are outward oriented – meaning toward development of such national capacities in countries other than the United States.

    Is the Council on Foreign Relations incapable of being that inward looking? 

    I am sure the irony of this is not lost on those in the United States who have been calling for several years for such natinal prosecutions in American domestic courts with regard to torture of foreigners by Americans.

    It is unfortunate that the authors of this study did not speak of accountability in the United States for our actions.

    I suspect the drafter of the Office of Professional Responsibility reports prior to the Margolies report over several years as well as John Durham are rolling their eyes.

    Looking forward without looking backward – American denial.

    Best,
    Ben

  2. Glenn Greenwald says it better than I could at this link http://www.salon.com/news/opinion/glenn_greenwald/2011/06/04/washpost/index.html

    Best,
    Ben

  3. Response…
    Yes, Ben.  The serial criminality of the Bush Administration will not disapear from history even though the Obama Adminstration refuses to faithfully execute the law and engage in meaningful initiation of prosecution of Bush, Cheney, Rice, Gonzales, et al.  And who was involved in this study — Rice’s legal adviser at NSC and State during the years when torture techniques were openly viewed, discussed, approved, and abetted during meetings in the White House Situation Room, etc.?  Did he call for an OLC memo, for what purpose?  Did he resign like Alberto Mora?Does he call for prosecution today?

  4. Wow, what a great idea!  Let’s encourage leftist judges and prosecutors in Europe and elsewhere to prosecute American and Israeli leaders for pursuing national policies that said judges and prosecutors oppose.  The only good thing that might come out of such actions would be American withdrawal from a range of international institutions that no longer serve American interests. How long would the UN last without America in it, I wonder?

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