The Absurd Military Commissions

by Kevin Jon Heller

A recurring criticism of the ICC is that it has little to show for its first 10 years — just one conviction — and has cost an inordinate amount of money.  Here, for example, are the opening paragraphs of Eric Posner’s recent attack on the Court in the Wall Street Journal, entitled “The Absurd International Criminal Court”:

Ten years ago, on July 1, 2002, the International Criminal Court (ICC) opened its doors. The treaty that created this new body gave it jurisdiction over genocide, crimes against humanity, and other international offenses committed anywhere in the world, by anyone against anyone. Supporters argued that it would put an end to impunity for dictators and their henchmen, and usher in a new era of international justice.

The court has been a failure. Although it has a staff of more than 700 and an annual budget in excess of $100 million, the ICC has so far completed precisely one trial—that of Thomas Lubanga, a commander in the civil war in Congo. It took three years and ended with a conviction on March 14, 2012. The appeals have not begun. A few other trials are ongoing or set to begin.

Even by the low standards of international tribunals, this performance should raise an eyebrow.

It occurred to me yesterday that another criminal-justice system recently celebrated its 10th anniversary: the United States military commissions at Guantanamo Bay, which President Bush created by executive order on November 13, 2001.  The commission system is vastly less complicated than the ICC — it builds on a long tradition of American military tribunals, it is run solely by one country, and it has jurisdiction over only one category of international crime (war crimes).  So surely it must be cheaper and more effective than an “absurd” multinational criminal tribunal like the ICC?

Let’s review:

  • November 2001 — military commissions created
  • July 2004 — first detainee indicted (Hamdan)
  • March 2007 — first detainee convicted after plea bargain; seven year sentence (Hicks)
  • August 2008 — first detainee convicted after trial; 66 month sentence (Hamdan)
  • Total number of indicted detainees: 13
  • Total number of convictions after trial: 2 (five plea bargains)
  • Cost of operating Guantanamo per year: $150,000,000

And now let’s compare.  The ICC issued its first request warrant 44 months after the Rome Statute entered into force (Lubanga); the military-commission system indicted its first detainee 31 months after Bush’s executive order and didn’t finalize the indictment until 41 months after that — a total of six years (Hamdan).  Trial began in the ICC’s first case four years after the arrest warrant was issued; trial began in the military commissions’ first case four years after the detainee was indicted (Hamdan).  The ICC’s first sentence was 14 years; the military commissions’ first sentence was seven years, with all but nine months suspended (Hicks).  The ICC has brought charges against 28 suspects; the military commissions have brought charges against 13 detainees.  The ICC costs $100,000,000 per year; Guantanamo costs $150,000,000 (although some of that is obviously not chargeable against the commissions).

If the ICC is absurd, what does that say about the military commissions?

http://opiniojuris.org/2012/07/13/the-absurd-military-commissions/

9 Responses

  1. Nice comparison!

    I’m not opposed to assessing the ICC in these terms after 10 years, but I do think a fair assessment will require a much longer time period. It calls to mind the methodological lessons Jon Elster derived from Tocqueville’s Democracy in America:

    (i) One must look at the consequences that emerge when the institution in question is widely used rather than marginal.
    (ii) Any given institution will have many consequences, some of them opposed in their tendency. It is imperative, therefore, to look at their net effect. [I would add that we should not confine our examination to those consequences that are easily quantifiable, as there may be important consequences of one kind or another that are either not readily quantifiable or are such that they cannot be quantifid.]
    (iii) One should not evaluate a given institution…according to its efficiency at each moment of time, but rather look at [its] long-term consequences.
    (iv) One should not confuse the transitional effect of introducing an institution with the steady-state effect of having it.
    (v) Our knowledge about social causality is too slight to permit confident predictions about the effects of an as yet untried system.
    (vi) [I’m modifying Elster’s last point, as it was meant to apply to constitutions and not institutions generally.] After the fact we may perceive advantages of the institution in effects other than those which were its official or primary purpose and in terms of which it makes sense to its participants.

  2. Hi Kevin,

    Where did you get the cost of Guantanomo from?  And is this the cost of the military commissions or of operating the entire base (or are they functionally the same thing)?

    I am currently working on a methodology for comparing the cost of international courts to domestic courts as a way to see whether they are really vastly more expensive once you control for the differing complexity of their caseloads (see the first draft of my complexity methodology on SSRN at http://ssrn.com/abstract=2101764) and I had been toying with the idea of looking at the military commissions.

     

  3. (i) One must look at the consequences that emerge when the institution in question is widely used rather than marginal.

    Response:  What a horrendous state of affairs it would be if these military commissions (even in their third generation) were widely used, let alone used at all.  Some still work to stop these conviction machines.  See Flawed Justice for Terror Suspects, Toledo Blade, June 17, 2012 (http://www.toledoblade.com/Op-Ed-Columns/2012/06/17/Flawed-justice-for-terror-suspects.html)

    (ii) Any given institution will have many consequences, some of them opposed in their tendency. It is imperative, therefore, to look at their net effect. [I would add that we should not confine our examination to those consequences that are easily quantifiable, as there may be important consequences of one kind or another that are either not readily quantifiable or are such that they cannot be quantifid.]

    Response: Experience with tribunal d’exception worldwide has been criticized for some time.  Nothing prevents us from ignoring that.  In this regard, we should keep in mind the use of evidence from detainees subject to drugging per the DoD Inspector General Report just out available at ( http://truth-out.org/news/item/10248-exclusive-department-of-defense-declassifies-report-on-alleged-druggin)

    (iii) One should not evaluate a given institution…according to its efficiency at each moment of time, but rather look at [its] long-term consequences.

    Response:  We know already some of what we have lost through these military commissions and the CMCR decisions.

    (iv) One should not confuse the transitional effect of introducing an institution with the steady-state effect of having it.

    Response:  The thought of having these tribunals based on the structure of them is terribly disturbing.  See “Stepping out of Line (Redux): Refluat Stercus or an Essay in parts on the KSM and other Military Commissions, Torture, Habeas and Detention, Targeting with Drones, False Pretenses for the War in Iraq and other aspects of the current conflict and accountability. May 5, 2012)” (http://www.saltlaw.org/blog/2012/05/05/stepping-out-of-line-redux-refluat-stercus-or-an-essay-in-parts-on-the-ksm-and-other-military-commissions-torture-habeas-and-detention-targeting-with-drones-false-pretenses-for-the-war-in-iraq/)

    (v) Our knowledge about social causality is too slight to permit confident predictions about the effects of an as yet untried system.

    Response:  See above on worldwide experience with tribunal d’exception.  Our experience is sufficient to know these military commissions are a very bad idea.

    (vi) [I’m modifying Elster’s last point, as it was meant to apply to constitutions and not institutions generally.] After the fact we may perceive advantages of the institution in effects other than those which were its official or primary purpose and in terms of which it makes sense to its participants.

    Response:  Before, during and after the fact we know that these military commissions only advantage are as an authoritarian model for repression through ersatz legal process.  They are carefully constructed to mask official lawlessness to the American people, even though the rest of the world is not duped.

    Best,
    Ben

  4. Response…
    And the Obama Military Commissions are violative of international law (with extra “costs”). http://ssrn.com/abstract=1997478
    Congress should exted federal district court jurisdiciton to GTMO for the S.D. Fla.

  5. The cost comparisons are unfair. You must subtract the costs of doing torture from GTMO before being able to compare it with the ICC. The costs are a whole lot closer than listed.
    Do you have any documentation that suggests that GTMO deals with war crimes, as opposed to commits war crimes? Perhaps not the best comparison. 
    Indeed, the cost of prosecuting war crimes at GTMO may actually be quite minimal as opposed to the cost of committing war crimes at GTMO.
    On the other hand the ICC is known for carefully selecting whom is allowed to join to avoid having to deal with difficult political issues. This selective decision on whom is worthy to receive protection saves a lot of money.

  6. Ben, I agree…but what about the ICC? (which was the point of my comment, although perhaps that was not clear)

  7. Perhaps I should be even clearer: the reason for citing these methodological principles was to suggest (insinuate, imply) that it’s still too early to do a fair assessment of the ICC….

  8. In fact, I was not thinking at all of the military commission system, given Kevin’s remark that “The commission system…builds on a long tradition of American military tribunals.” Respect for the aforementioned principles should precede any useful evaluation of the ICC, in which case it strikes me as premature to engage in any sort of assessment at this point in time.

  9. Quick question: to what degree is the “slowness” in these first cases (in both tribunals) due to the fact that there are legal issues that need to be solved once and for all.  I.e. to what degree have legal issues been brought up and answered that can no be disposed of in later cases thus leading to faster trials.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.