The Absurd Military Commissions
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?
- 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?