Punishing Atrocities Symposium: Thoughts on the Arc of the Universe and International Justice

[Gabor Rona is Visiting Professor of Law and Director of the Law and Armed Conflict Project at Cardozo Law School. This post is part of our Punishing Atrocities Symposium.]

If like me, you have always believed that the arc of the universe does, indeed, to paraphrase the 19^th Century Unitarian minister and abolitionist Theodore Parker, bend toward international justice, this may be a good time to ask, “Really?”

What with:

• the rising planetary tide of xenophobia and authoritarian rule,
• the seemingly increasing inability of an increasingly anachronistic UN Security Council to fulfil its promise to prevent and end mass atrocities,
• the tribulations of, and (lack of) trials in, the International Criminal Court, and
• the rogues’ gallery of impunity – Syria, Congo, Myanmar, China, North Korea, Darfur, U.S. torture, the Philippines readily come to mind,

the verdict seems to be self-evident. And yet, as with many important questions, the answer is “It depends.” In this case, on how broad a time frame one chooses to consider.

1948 is a good place to start. That’s when the international community negotiated a seismic shift to the international legal landscape, laying the foundation for today’s institutions of international justice. It was the birth year of the Universal Declaration of Human Rights. Before WW II and the UDHR, traditional notions of State sovereignty reflected a Las Vegas-kind of view: what happens in country X (as between the State and those within its jurisdiction) stays in country X. Pre-1948, international law was largely about State-to-State relationships. With the advent of the UDHR and the many international human rights and humanitarian law treaties that it spawned, people (that is, individuals) increasingly became international law players – the State had responsibilities to them and they had rights and responsibilities vis-a-vis the State, under international law.

Since then, we’ve experienced another dimension in which the individual has increasingly figured in international law – what Prof. Cherif Bassiouni noted to be the growing criminalization of international law and internationalization of criminal law. The former refers not only to the development of international tribunals, but also to the less obvious fact that while violations of international law are not per se criminal, they have been increasingly criminalized. This distinction, for example, was litigated in the Special Court for Sierra Leone’s case against Charles Taylor, accused of, inter alia, recruitment and use of child soldiers. That such a prohibition pre-existed the charges was not much in doubt, but the criminality of it was hotly contested by the defense, which claimed the prosecution was an ex post facto application of criminal responsibility, thus violating the hallowed principle of legality. (Wrong, said the Court – the criminal nature of the prohibition had been established prior to the conduct at issue.) The internationalization of criminal law, as distinct from the criminalization of international law, refers to migration of the substance of domestic criminal law into the realm of the international. Together, these phenomena reflect a blossoming of the rights and responsibilities of individuals (victims and perpetrators, respectively) in international law.

Considering what little international criminal justice there was prior to WW II, today’s institutional dysfunctions and poster children for impunity appear more of a deceleration than a crash and Jonathan Hafetz’ new work on international criminal law provides eloquent testimony to the fact. Hafetz takes on a number of seemingly disparate international criminal law phenomena, and puts them all under a lens of one question: what makes a trial “fair?”  The question may be of obvious importance, in fact the terms “fair” and “trial” are hardly separable today. But that’s only because the UDHR and its progeny demand that it be asked – another testament to the growing standing of the individual in international law.

Hafetz’ premise is that accountability and fairness are not easy cohabitants. This much is clear from Nuremberg, and even more so, the contemporaneous Far East tribunals, the combination of which are the template for today’s institutions of international justice. These tribunals are rightly celebrated for their revolutionary role in bringing the purveyors of mass atrocity to justice, and rightly criticized as victor’s justice, ex post facto justice, and racist (especially the Far East cases). Nuremberg’s primary lesson and legacy is of accountability. But its flaws also constituted a teaching moment in the drive toward fairness. 

Established a half century later, the International Criminal Court (ICC) is the product of the international community’s desire to build on Nuremberg’s model as an antidote to impunity, but also to institutionalize emerging notions of due process of law, or fairness. The most significant advance in this realm is not even the many, specific elements of fair trial embodied in the ICC’s Rome Statute, Rules of Procedure and Evidence and Elements of Crimes documents. It is in the very establishment of the Court as a permanent body grounded in a multilateral international treaty, rather than an ad hoc response of victors to a particular set of atrocities.

Hafetz catalogues the many challenges to fairness in criminal law, some of which are unique, or at least uniquely complex, in the administration of international criminal responsibility. These include access to evidence and witnesses, protection of victims, complexities owing to the breadth of the crimes, the fact that many are committed by government officials and agents, etc.  These concerns relevant to the conduct of trails and the rights of the accused are well known to readers of Opinio Juris and I won’t further detail them here. Hafetz’s more significant contribution is in his exposition of two potentially fork-in-the-road issues of greater scale.

One is the “selectivity challenge.” What cases are prosecuted and why?  The ICC Pre-Trial Chamber’s recent decision to shut down the Prosecutor’s proprio motu preliminary examination and investigation regarding Afghanistan, including arbitrary detention and torture of detainees by Americans, came too late for Hafetz’s book, but is stark evidence that the ICC, if not international justice writ-large, is on shaky ground. The PTC opined that prosecution would not be “in the interests of justice,” in part because some relevant States could be expected to refuse to cooperate. While the PTC certainly doesn’t admit that U.S. threats against the Court were instrumental to its conclusion, to link the two is not irrational. In light of background complaints that the ICC picks on Africa while giving the West a pass, the Afghanistan decision could play out as a serious, self-inflicted wound to the ICC.

Hafetz also discusses the controversy over treating terrorism as an international crime. Vagaries concerning the definition of terrorism contribute to lack of boundaries between crime and legitimate political activity, providing the foundation for authoritarians to equate opposition, or merely Muslim, and terrorist. U.S. promotion of second class justice for terrorism suspects (e.g., the Guantanamo detention regime and its Military Commissions), recent noises from the Trump administration about labeling the Muslim Brotherhood a terrorist organization, and over-the-top use of “material support” laws to criminalize association with people we don’t like, all highlight the danger that overuse of “the T word” presents to fairness in international criminal proceedings.

I seem to have started this essay in an optimistic mood, noting the revolutionary nature of post-WW II developments in the realm of international criminal justice, and then retreating into examples of how and why those gains are suddenly at risk. While responses to terrorism and the growing pains of the ICC, among other phenomena, may herald backsliding on international criminal justice, I think the broader trend, natural and unnatural global disaster aside, is to maintain and advance the notion that the individual has both rights and obligations under international law. That’s a good thing for both the fight against impunity and for fair trials.