Author Archive for
Gregory Gordon

A Different View of the Aggression Activation Negotiations – A Perspective from the Ground

by Gregory Gordon

[Gregory Gordon is Associate Professor of Law at the Chinese University of Hong Kong]

I’m here on the ground in New York and I want to provide an additional perspective on Kevin’s post. First, the document he has posted is strictly a transitory draft meant only to facilitate discussion. In no way does it necessarily represent any hardened position of the delegates. From what I understand, there is no consensus on it and the parties have moved on from it.

Second, even if it did represent the final word, his understanding about OP(1)(a) and (b) is not necessarily accurate. ICC-ASP/16/L.9/Rev.1 OP (1)(a) only acknowledges the position of those States Parties (i.e., the UK/France camp), which is already reflected in the Report on the facilitation, statements made here upon adoption of any resolution, or by letter to the ASP by 31 December 2018. Subsection (b) applies only to the States Parties referred to in (a). Kevin provides his interpretation that “they” extends to all other States Parties. But the understanding of folks here on the ground is that (b) is limited to those States Parties in (a).

Kevin is entitled to his interpretation — but it does not seem to accord with the tenor of negotiations. Moreover – and this is very important – and in all due respect to Kevin – at this point, it is not helpful to speculate on either the process or substance of negotiations that remain active and have a way to go prior to a final decision (either way) by States Parties. I appreciate that he is trying to stimulate interested discussion – that’s his right – but given the delicate nature of negotiations, public comment could have a potentially misleading and unintended detrimental effect. ICC-ASP/16/L.9/Rev.1, which Kevin has posted in its entirety, was not intended to be publicly released. There are good reasons for that. Many of us here are hoping that this delicate negotiation process will lead to an outcome that will contribute toward the progressive development of international criminal law. Let us hope those delicate negotiations – still very much in train — come to fruition.

Reply by Gregory S. Gordon: On the General Part, the New Media and the Responsibility to Protect

by Gregory Gordon

[Gregory Gordon is Associate Professor of Law, Associate Dean for Development and External Affairs and Director of the Research Postgraduates Programme at The Chinese University of Hong Kong Faculty of Law.  He was formerly a prosecutor with the International Criminal Tribunal for Rwanda and the U.S. Department of Justice, Office of Special Investigations.]

I am grateful to Opinio Juris, especially organizers Chris Borgen and Jessica Dorsey, for providing this amazing platform to have a discussion about my new book Atrocity Speech Law: Foundation, Fragmentation, Fruition. And I would like to thank Professors Roger Clark, Mark Drumbl and David Simon for their astute and thought-provoking observations. Each took a different perspective regarding the book so I will respond to each of them ad seriatim.

Roger Clark is one of the great architects of international criminal law (ICL) and his contribution here masterfully situates my central arguments within the larger framework of ICL’s general part. Much is made in my book of incitement’s circumscribed application to the core offenses. But incitement is not ICL’s only marginalized inchoate modality – conspiracy has gotten the same treatment, as Roger indicates in his post. Animus toward that modality, however, arguably comes from different quarters. As Roger suggests, since Justice Jackson negotiated the contours of what would become the Nuremberg Charter, Americans have met with resistance when trying to weave conspiracy, a common count in American charging instruments, into ICL’s doctrinal warp and weft. And that’s not just in relation to the Pinkerton-type conspiracy to which Roger alludes (commonly associated with the controversial third category of joint criminal enterprise or “JCE III”– i.e., assigning criminal liability for offenses that were the “natural and foreseeable consequence” of implementing a common design).

I have very vivid memories of indictment-review meetings at the International Criminal Tribunal for Rwanda (ICTR), where lawyers from Civil Law jurisdictions would gnash their teeth and stoutly object to proposed garden-variety conspiracy counts. This could be the subject of another Symposium but I am still perplexed by this animosity; agreements to engage in group criminality – especially in the mass atrocity context – should be nipped in the bud and that is the object of inchoate conspiracy. And thus, to clear up one of Roger’s points, I am a fan of inchoate conspiracy! Of course, like any penal regulation, it can be abused. But when administered properly it can be a remarkably effective enforcement tool. And there is no doubt that my American-honed criminal law perspective colors my views on this topic!

So it is somewhat ironic that ill feeling toward that other inchoate crime, incitement, is primarily of American origin — owing to a rabid free speech ethos flowing from libertarian impulses. And it is here that I part company with many of my compatriots. As I point out in my book, incitement was nearly left out of the Genocide Convention due to American opposition out of concerns for liberty of expression. In fact, as Roger hints at in his post, it was the American position that there was no need to criminalize incitement separately, as it was already covered by conspiracy. I do not share that view. Provoking others to commit genocide is different from agreeing with them to do so. Conspiracy can be effected through non-verbal means. But incitement is always a verbal delict.

And that’s one of the key points in my book. It is true that we can technically find more general penal provisions to cover oral/written criminality in reference to mass atrocity. We could, for example, charge conspiracy rather than incitement or complicity rather than speech abetting (my proposed new modality). But that would be a mistake, I submit. We must recognize the critical, and unique, role played by verbal provocation in the atrocity context. And the operationalization of my proposed “Unified Liability Theory” does just that. While preserving incitement’s pride of place in reference to genocide, it would untether it from this traditional mooring and link it to the other core crimes. Just to be clear, in relation to Roger’s concern, that necessarily means adding incitement to crimes against humanity (CAH). And, more granularly, it should also entail incitement to the individual enumerated CAH acts. Thus, we should be thinking along the lines of incitement to CAH-extermination, for example.

And this is not such a radical idea. Roger references the little-noticed provision of US Army Field Manual 27-10, cited in my book, which criminalizes incitement to commit genocide, war crimes and crimes against humanity. And lest we forget, this was the approach taken by the International Law Commission in both the 1954 and 1996 versions of its Draft Code of Offences against the Peace and Security of Mankind. That is why I find baffling the ILC’s exclusion of incitement in the current version of its draft articles for a Convention on Crimes against Humanity.

Like all his work, Mark Drumbl’s analysis here is as brilliant lexically as it is legally! I can think of few other scholars whose work I peruse as much for the art of the prose as for the depth of the ideas. Perhaps it is appropriate that he comments on my book’s length. As it happens, during my darkest days of drafting drudgery, I would turn to the writing in works such as Atrocity, Punishment, and International Law to get inspired. And sure enough, after a few choice Drumblian paragraphs, I was back to my manuscript and the words would start to flow!

But let me state that I don’t believe my manuscript’s heft is for want of proper editing or any other indulgence. The criminal law governing the relationship between speech and atrocity had become such a tangled mess, that a proper genealogy, i.e., a big dig below several strata of botched norm-crafting, was necessary. Mark generously (I think) describes this law-formation process as “bricolage” in its English-language academic sense (i.e., something constructed or created from a diverse range of available things, with no teleological orientation).

But there may be a bit of irony in his use of this word. Per its ordinary Gallic meaning, bricolage refers to home-improvement “do it yourself” projects. And, in light of atrocity speech law’s herky-jerky doctrinal accretion, this is revelatory. For every stage of legislation – the Nuremberg Charter, the Genocide Convention, the ad hoc tribunal statutes, the Rome Statute – one discerns a “do it yourself” mentality (in a solipsistic sense) regarding the laws crafted to deal with discrete situations or problems. There appears to be little thought about what came before or what might follow — the bigger picture simply did not factor in. And deeper etymological analysis yields even more irony. When used pejoratively, bricolage in French means “patch-up job” or “shoddy workmanship.” And that perfectly describes the current atrocity speech law framework (and, to be fair, Mark certainly recognizes “concerns over coherence, predictability, and consistency.”)

Still, Mark intimates this process might have some value given the law’s natural, organic growth. I appreciate his point. But how much does organic growth matter if the ground soil is toxic to begin with? And regardless of soil quality, I highly doubt one could say the growth has been organic in any salutary, Aristotelean sense. Rather, the law has sprouted up pell-mell, like a dense tangle of weeds. And disentangling that mess, as well as explaining how properly to reconstitute it, takes patient parsing and ultimately results in a large Kindle data file. It was high time, I felt, to move past the myopic fragments of scholarship that had failed to offer holistic remedies.

Moreover, as Mark points out, that was not my only task. I also wished to suggest a to do list for future scholarship in this area. And, in this regard, I appreciate Mark’s emphasis on the key issue of sentencing. It simply would not do to adjust the liability misalignments while ignoring the punishment ones. As noted in my book, penalties to date have seemed as random as the contours of the substantive offense architecture that gave rise to them. Mark has generated amazing scholarship in this area and if he could turn his attention to this part of the atrocity speech law mess, we might get the insights needed to fix what is a highly undertheorized part of ICL.

Regarding atrocity and the new media, Mark has homed in on another critical aspect of future work in this area. I can understand his point about how “last century” the focus of my book seems to be. But it’s important to understand the context here. Atrocity Speech Law is mostly about the jurisprudence emanating from the Rwanda/Yugoslavia ad hoc tribunals and Nuremberg. When, to the chorus of RTLM rants, the Land of a Thousand Hills was being drenched in Tutsi blood, newspapers and radios were still the dominant media. When the Balkans convulsed in an orgy of post-Cold War ethnic cleansing, the likes of Slobodan Milošević and Radovan Karadžić were taking to the airwaves, not Twitter or Instagram. And so the jurisprudence to date reflects that.

Still, there are points in my monograph where the new media factor in. For instance, regarding incitement to genocide, I counsel considering media type as an evaluative factor to determine whether the “incitement” element of the offense has been satisfied. A more static medium, such as print, would compel a weaker inference of incitement. Social media, such as Twitter, would call for a polar-opposite inference. And in-between would be radio, a transmission vehicle less viral than social media but far more inherently incendiary than newspapers. Similarly, in respect of persecution, contextual evaluation of the speech in reference to a widespread or systematic attack against a civilian population demands consideration of the medium. Use of Instagram raises fewer freedom of expression concerns than, say, distribution of a pamphlet.

That said, Mark is on to something big. The issues raised by the use of new media must be grappled with more fully in the literature. When the next wave of state-sponsored mass violence leads to a new spate of inquests, questions of guilt in relation to internet service providers and social media platforms will no doubt vex future courts. We need to get out ahead of these issues and understand how to resolve them now. If we do, perhaps justice can be meted out far more efficiently and effectively than it was through this now-concluding ad hoc tribunal cycle. And, who knows, maybe good scholarship can contribute toward blunting atrocity rhetoric such that future trials will not even be necessary.

And that is a good segue to David Simon’s outstanding contribution. He focuses on how atrocity speech law coherence can help promote deterrence. But fixing the substantive law, he submits, will not be enough sans meaningful implementation. Given the outsize influence of the US, and the Security Council P5 generally, he questions whether the courts are the ideal enforcement fora in the first instance. But he brilliantly posits an alternative — “a network of non-governmental organizations paired with independent international bodies, perhaps set up at regional levels . . . that could be charged with identifying or responding to atrocity speech complaints.” And if not successful at that level, matters could be referred to higher bodies, such as upper-level regional organizations or perhaps even the ICC.

I was really excited when I read David’s post because, in certain important respects, it aligns well with another project I’m now working on concerning the philosophical foundations of international criminal law. In my new piece, tentatively titled Transnational Governmentality Networking: A Neo-Foucauldian Account of International Criminal Law, I rely on Michel Foucault’s later-stage theory of “governmentality” to help theorize the origins of international criminal law (ICL). Governmentality can roughly be defined as a non-disciplinary form of power arising from an amalgamation of institutions, procedures, analyses, and tactics that enable governance. I contend that ICL grew organically (there’s that word again!) from low-level, often informal, transnational networks enabled through the intercession of nongovernmental and international organizations. These networks ultimately facilitated the series of procedures, analyses and tactics that have reached critical mass in the formation of ICL.

Per this account, we can see David’s proposal as essentially suggesting a return to ICL roots (a bit of “reverse engineering” on his part as well!). But here the context is hate speech with a view toward atrocity prevention (via the emerging Responsibility to Protect norm). Obviously, on a personal level, I could not be more pleased to see two key branches of my scholarship brought together for such a meaningful purpose. And to have it coming from one of our finest genocide scholars is an incredible honor. Clearly, we need more of this sort of outside-the-box thinking if we ever realistically hope to redeem that “never again” pledge.

A Set of International Crimes without Coherence or a Proper Name: The Origins of “Atrocity Speech Law”

by Gregory Gordon

[Gregory Gordon is Associate Professor of Law, Associate Dean for Development and External Affairs and Director of the Research Postgraduates Programme at The Chinese University of Hong Kong Faculty of Law.  He was formerly a prosecutor with the International Criminal Tribunal for Rwanda and the U.S. Department of Justice, Office of Special Investigations.]

I have always felt that great scholarship is born of great frustration. And that’s what inspired me to write Atrocity Speech Law: Foundation, Fragmentation, Fruition (Oxford University Press 2017). Why was I so frustrated? The answer goes back to my salad days as a lawyer with the Office of the Prosecutor at the International Criminal Tribunal for Rwanda, when I was assigned to the “Media” team. We investigated, and eventually indicted, certain newspaper and radio executives/employees responsible for inflammatory rhetoric disseminated in the lead up to and execution of the Rwandan Genocide. But there were few legal precepts, and even less jurisprudence, available to guide us. What little there was emanated from Nuremberg, where rabid Jew-hating journalist Julius Streicher, Nazi Radio Division head Hans Fritzsche and Reich Press Chief Otto Dietrich had been prosecuted. So, from a legal perspective, we had to be resourceful as we constructed our ICTR media cases centering on charges of direct and public incitement to commit genocide and hate speech as the crime against humanity of persecution – only the latter having been charged against the just-mentioned Nazi propagandists (other possible speech-related charges available to us were instigation and ordering). But given that we were venturing onto what was largely legal terra nullius (especially with respect to incitement), we often had to grope in the doctrinal dark. So that was the first stage of frustration.

Still, from a law development perspective, I remained sanguine. The key “Media” defendants were ultimately convicted – Ferdinand Nahimana and Jean Bosco Barayagwiza (founders of the infamous Radio Télévision Libre des Milles Collines or RTLM, otherwise known as “Radio Machete”), RTLM announcer Georges Ruggiu, and extremist Hutu newspaper editor Hassan Ngeze. The judgments against them, along with that of Mayor Jean-Paul Akayesu for incitement to genocide (the first in history) – offered hope that a decent foundation had been laid for a law that could effectively govern the relationship between speech and atrocity. But that hope turned out to be misplaced.

Over time, for example, it became clear that there were problems with the formulation and application of the incitement crime, comprising the elements of “direct,” public,” “mens rea,” “incitement” and, possibly causation. Issues arose with respect to each of these. I will not deal with each of them here but will provide some brief examples for illustrative purposes. For instance, thanks in large part to the Akayesu judgment’s paying wishy-washy obeisance to both French- and English-language sources, treatment of the “direct” element was schizophrenically situated somewhere between Common Law and Civil Law conceptions. Unfortunately, the French word for “incitement” – inciter – was also the French word for “instigation” – one of whose elements is resultant violence. So that seemed to engender confusion with respect to causation. Incitement, as an inchoate crime, should not require causation. But Akayesu and its progeny were examining causation in the factual portions all the same and the Akayesu judges even went so far as to assert the need to prove “a possible causal link” between the relevant speech and subsequent violence in that case.

As for the “public” element, its inadequacies were exposed in the so-called “roadblock cases” at the ICTR. Even though inflammatory speech uttered at roadblocks was in a “public” place — because on public roads accessible to all citizens — the speech was held not to be “incitement” because “members of the public” were not present. But if enough persons were present at the roadblock, then “members of the public” could be considered in attendance and the speech could be considered “incitement.” This was a distinction without principle and did not seem to be justified from a policy perspective. Moreover, an advocate’s voice in closer proximity to a listener is arguably more compelling than one from a distance. In other words, private incitement can be just as lethal, if not more, than public.

There were problems with crimes against humanity(CAH)-persecution too. That crime consists of (1) knowingly uttering speech as part of a widespread or systematic attack against a civilian population; (2) resulting in a severe fundamental group-rights deprivation (motivated by group-status); and (3) considered as being of the same gravity level as the other CAH acts. Unfortunately, the ICTR and ICTY have adopted polar opposite positions regarding the issue of whether hate speech not calling for violence can serve as the actus reus for persecution as a crime against humanity. The ICTR concluded that such rhetoric blatantly deprives the target ethnic group of fundamental rights and thus could be the basis for charging persecution. But the ICTY, in the Kordić judgment, found that hate speech not directly calling for violence did not constitute persecution because it failed to rise to the same level of gravity as the other enumerated crimes against humanity acts (such as imprisonment or deportation, for example). And so doctrinal gridlock ensued.

Instigation, the prompting of another to commit an offense (resulting in commission of the offence) – with a connection between the prompting and the crime (i.e. a “contribution”) has also been plagued with problems. As we have seen, it has been consistently confused with incitement and this has exacerbated the muddled jurisprudence regarding causation in both bodies of law. Moreover, there is no consistent approach to the crime’s “contribution” requirement, leading to a series of disjointed pronouncements regarding the degree of contribution and, reading last year’s horrid Šešelj judgment, arguably importing a “but for” causation requirement into the jurisprudence. Ordering, essentially instigation in the context of a superior-subordinate relationship, has been deficient as it permits the superior to escape liability if the command is not carried out (clearly problematic when juxtaposed with incitement to genocide, where there is no superior-subordinate relationship between speaker and listener but the speech utterance itself – regardless of resultant violence — carries liability).

In addition to such individual offense problems, I was also beginning to realize these modalities did not function well together as an ensemble, thus creating significant liability loopholes. For example, in the law’s current state, liability for “incitement” — an inchoate crime — is limited to genocide. Crimes against humanity and war crimes are also horrific atrocity offenses. Why was there no incitement liability connected to those crimes? Similarly, speech uttered in support of contemporaneous mass violence — and with knowledge that the violence is occurring — is limited to the offense of persecution as a crime against humanity. Why was there no speech-specific liability for rhetoric uttered knowingly in support of ongoing acts of genocide or war crimes? The answer could not lie in generic accomplice liability, as it does not recognize the unique power of speech to provoke mass atrocity in the first place.

Upon deeper reflection, it occurred to me that this problem owed to the piecemeal development of the entire body of the law from its inception. On an ad hoc basis, according to individual exigencies at different times, this doctrinal assemblage had been cobbled together by taking a hodgepodge of legal concepts, such as inchoate or accomplice liability, and willy-nilly fastening them to different speech activities. Thus, it is only by historical chance that incitement, a form of inchoate liability, only applies to genocide and not to crimes against humanity or war crimes. The resulting gaps frustrate prevention efforts and help encourage repressive regimes to take advantage of the ambiguity and suppress legitimate speech.

So, in the full measure of time, the growing body of jurisprudence was clearly not allaying my initial sense of frustration. Perhaps, I began thinking, fellow academics and other experts were also noticing these problems and offering solutions. But a review of the literature also left me disappointed – it was as fragmented as the doctrine. Despite excellent individual pieces by talented scholars such as Susan Benesch, Carol Pauli, Wibke Timmermann, Diane Orentlicher and Richard Wilson, among others (myself included – guilty as charged!), there had been no comprehensive study of this body of law. Some articles and books had dealt with parts of it but no single volume had furnished a comprehensive analysis of the entire jurisprudential output and the relation of each of its parts to one another and to the whole (although Wibke’s monograph Incitement in International Law, published after I started writing my book, came closest). No one had yet bothered to step back, systematically consider what has been produced, and provide holistic, constructive analysis and suggestions for change.

And thus was the Atrocity Speech Law project born. After completing my research, I found the book logically divided into the three components of its subtitle. Part 1, “Foundation,” begins with a brief history of atrocity speech, focusing on the Armenian genocide, the Holocaust, and mass killing in the former Yugoslavia and Rwanda in the 1990s. It then looks at the modern treatment of hate speech in international human rights treaties (such as the International Covenant on Civil and Political Rights) and in domestic jurisdictions. This serves as a bridge to a history of atrocity speech law focusing on its origins at the Nuremberg trials. Flowing from this, the book examines the development of speech crimes as formulated in the Genocide Convention and the statutes of the ICTR, ICTY and ICC. It then analyzes the relevant decisions issued by these courts, including the seminal ICTR Akayesu, Ruggiu, and Media Case judgments as well as the ICTY’s Kordić decision. It concludes by considering the general framework and the elements of the crimes established by these decisions.

Part 2, “Fragmentation,” goes on to identify the discrepancies within that framework, its inconsistent applications and other problems the framework engenders, as discussed above. Finally, Part 3, “Fruition,” recommends how the law should be developed going forward to deal with these issues. It begins by proposing how to fix the various problems within each individual speech offense. Then it suggests a more comprehensive and elegant solution: a “Unified Liability Theory” that would replace the current patchwork of speech offenses surrounding atrocity — e.g., incitement only applying to genocide, speech-specific inchoate liability not applying to crimes against humanity or war crimes, and speech offenses related to war crimes being limited to instigation/ordering — and create four general categories of speech offenses: (1) “incitement” (an inchoate mode of liability applying to all three core crimes — genocide, crimes against humanity and war crimes — but eliminating the “public” element from the liability portion of the crime and attaching it to sentencing considerations — while removing “direct” from the title only, not the prima facie elements to help protect free speech); (2) “speech-abetting” (a type of accomplice liability for speech knowingly delivered simultaneously with commission of atrocities, and also applying to all three core crimes); (3) “instigation” (a form of commission liability applying to all speech causally related to subsequent atrocity and thus also linked to the three core crimes); and (4) ordering (criminalizing commands to commit atrocity within a superior-subordinate relationship and incorporating inchoate liability).

And all of these reforms can be operationalized through promulgation of a new treaty, “The Convention on the Classification and Criminalization of Atrocity Speech Offenses,” and/or through amendment of the Rome Statute to include Article 25bis — “Liability Related to Speech.” That new provision, whose equivalent could also be placed in domestic statutes as well as the constituent instruments of existing and/or new ad hoc international tribunals, would contain all four types of speech liability — incitement, speech abetting, instigation and ordering — connected to all three core international offenses — genocide, crimes against humanity and war crimes. The point is that speech’s unique and potent contribution to atrocity should be recognized and criminalized in its own right. It should not become lost in a set of scattered provisions, relegated as a functionally invisible adjunct to other criminal law concepts in the general “modes of responsibility” sections of statutes, charters and codes. And the set of principles it gives rise to should have a name commensurate with its elevated status. That name should capture the entire range of the doctrine and its intimate relationship with mass violence. And this book coins that name: “atrocity speech law.”

Garzon Goes After Another Pinochet

by Gregory Gordon

[This is a guest post by Professor Greg Gordon of the University of North Dakota.  Professor Gordon is the Director of the UND Center for Human Rights and Genocide Studies, an expert on international criminal law and a past guest blogger at Opinio Juris.]

Earlier this week, Spanish National Court Judge Balthazar Garzon initiated money laundering proceedings against the widow of deceased Chilean dictator Augusto Pinochet, as well as Pinochet’s former lawyer and two of his bankers. In connection with the probe, Garzon has ordered the suspects to post a $77 million bond, indicating the bond is to “cover whatever financial liabilities might arise” in his probe. The four suspects, along with Banco de Chile, have ten days to pay the bond. If they fail to pay, Garzon has threatened to seize from their bank accounts the amount of the bond, plus an extra third – a total of approximately $103 million. The order, which did not reveal where the accounts are held, is meant to extract payment to “cover whatever financial liabilities might arise” in Garzon’s probe.

Judge Garzon’s actions raise a slew of interesting legal questions, both substantive and procedural, as well as policy questions about the appropriate scope of universal jurisdiction. First, and most fundamentally, under what authority is Garzon proceeding?  Second, should money laundering be considered a “serious” violation of international law?

So Long and Thanks

by Gregory Gordon

I want to thank the folks at OJ for having me over the past two weeks. You have all made me feel at home and I’ve enjoyed it very much. I’ve especially appreciated the opportunity to discuss legal issues stemming from upheaval in the African Great Lakes region. Some of these issues have been on my mind for some time and it was fantastic to have a forum through which to express and develop them. It was even more meaningful given that, during my guest-blogging stint, there were significant related developments on the universal jurisdiction front, Rwanda notified the world that gacaca would soon come to an end, and Hillary Clinton announced a visit to DR Congo as the country became engulfed in yet another wave of cataclysmic violence. It was fascinating to see convergences between my thinking and related current events and to see how those current events were shaping my thinking as I struggled to put it all into words in real time. In that sense, the fortnight was quite energizing. And that feeling was only enhanced by opportunities to discuss other vital issues in the news such as asylum law and gender-crimes and the Sotomayor confirmation hearings. The reader comments related to my posts have been thoughtful and stimulating and I have learnt much from them. To sum it up, these two-weeks of international legal e-dialogue and cyber-camaraderie have been a true privilege. I hope I’ll have the chance to do it again. Good night and good luck.

The Strange Case of Laurent Nkunda

by Gregory Gordon

Until his arrest by the Rwandan military earlier this year, General Laurent Nkunda, a Congolese Tutsi and former chairman of the Congolese Congrès National pour la Défense du Peuple (CNDP), had been considered one of the key destabilizing figures in eastern Congo. Back in 2004, Nkunda and his rebel troops took control of the South Kivu town of Bukavu, claiming this action was necessary to stop the genocide of the area’s Banyamulenge (Congolese Tutsis) at the hands of the FDLR (see my previous post to learn about them). During the fighting, Nkunda’s troops, thought to be taking orders from Rwanda, reportedly carried out war crimes, killing and raping civilians and looting their property.

DR Congo indicted Nkunda the following year but he and his troops continued to prey on the civilian population of the Kivus. Early in 2007, as part of the demilitarization and reintegration process, combatants loyal to Nkunda were incorporated into the national army in a procedure called “mixage.” Unfortunately, the newly established “mixed” brigades killed scores of civilians and committed rapes and other abuses in their operations against the FDLR.

By the summer of 2007, the political agreements between the government and Nkunda had collapsed and many of Nkunda’s former troops returned to his control. Renewed clashes between CNDP troops and government soldiers followed. In the latter part of 2008, after a brief respite, Nkunda launched a new offensive against government forces that resulted in the eventual encirclement of Goma. The fighting forced more than a quarter of a million people from their homes.

In early January 2009, Nkunda was ousted from the CNDP by his Chief-of-Staff, General Bosco Ntaganda (who is himself under ICC indictment — see here –for Ituri-related war crimes). Nkunda was captured by Rwandan forces a couple of weeks later. And he’s been in Rwandan custody ever since. Soon after his incarceration, it appeared that Rwanda was engaging in serious discussions with DR Congo about extraditing him to face Congolese justice. But those talks seem to have petered out.

Critics claim that Rwanda is unwilling to hand Nkunda over to their former rivals and risk damaging revelations about its past close relationship with the accused war criminal. That perception seems to be corroborated by recent comments by Rwandan president Paul Kagame:

Responding to a question on the status of General Laurent Nkunda, President Kagame told members of the press that the former CNDP leader as an individual was not the main problem and that the current challenges being faced needed to be understood in a wider context of the root causes of conflict and instability in the region. He added that Rwanda and DRC are working closely together to appropriately resolve the issue of General Nkunda, and it should not derail the larger ongoing process of establishing peace, long-term stability and cooperation in development in the Great Lakes region.

Perhaps emboldened by such statements, Nkunda recently asked Kagame to free him (see here). And he claims that his erstwhile ally has neither informed him of the reasons for his arrest and detention nor allowed him to appear before a judge.

On top of all this, it would appear that, as mandated by Congolese law, the Nkunda indictment has not been “renewed” by a judge and has thus expired (and apparently, no arrest warrant was ever issued). Not only has Rwanda’s arrest and detention violated its own domestic law and international human rights obligations, it may not, in the end, even have authority to extradite.

So what now? If there is credible evidence that Nkunda is guilty of war crimes (and there appears to be a lot of it), DR Congo ought to renew or refile its indictment and issue an arrest warrant. If it fails to do so (or if it claims it cannot because its dysfunctional justice system lacks capacity), the ICC should step in and indict (pursuant either to Congolese self-referral, which has been the trend, or to a proprio motu investigation). Even in the absence of an indictment or arrest warrant, Rwanda may have a Geneva Convention duty to act under the principle of aut dedere aut judicare (Latin for extradite or prosecute), which obliges the custodial state to investigate and prosecute or extradite persons suspected of having committed grave breaches of the Geneva Conventions and Additional Protocol I, regardless of the nationality of the alleged perpetrator or place where the crime was committed.

On the other hand, Nkunda’s alleged crimes were seemingly committed as part of an internal armed conflict so it’s not clear if the grave breaches provisions would apply (then again, the conflict might be considered internationalized given the alleged involvement of Rwanda – the custodial state!). By the same token, it could be argued that aut dedere aut judicare is implicated when Common Article 3 is violated (regardless of whether it is considered part of the grave breaches regime – I think a violation of Common Article 3 is automatically tantamount to a grave breach – in contrast to the Bush administration’s specious attempt to import the notion of a “grave breach” of Common Article 3 into the Military Commissions Act of 2006). Still, it should be pointed out that the obligation to investigate or extradite persons suspected of grave breaches is one that has rarely been put into practice. Don’t count on Rwanda to buck the trend.

So Nkunda’s current Kafkaesque predicament will likely continue into the indefinite future. Yet another case of justice delayed (if not ultimately denied) in the nightmare that is DR Congo . . .

An “African Marshall Plan” for DR Congo

by Gregory Gordon

It’s the colossal human catastrophe that just won’t go away. And closing our eyes and wishing it were so is not going to work. There are new reports of fresh fighting, and widespread internal displacement and sexual violence in the Democratic Republic of Congo. According to UNHCR, some 56,000 people have been forced to flee renewed armed conflict between government forces and Rwandan Hutu rebels in the eastern portion of the country in the past couple of weeks. This brings the total number of civilians displaced in South Kivu since January to 536,000 and in the whole of eastern DR Congo, the number of displaced has reached over 1.8 million. Experts estimate that approximately 45,000 people die in the country every month. The hellish fate of one such individual is vividly chronicled in today’s Washington Post.

This recent round of maelstrom is the result of a renewed Congolese campaign to root out remaining pockets of extremist Hutu resistance (consisting of a group of rebels known collectively as the Democratic Forces for the Liberation of Rwanda or FDLR) and their local militia allies. The FDLR consists of Rwandan genocide perpetrators who crossed the border as the RPF swept to victory. They initially hoped to refortify, invade Rwanda and topple the current government but their ranks and resources have thinned over the course of Congo’s perpetual fighting (which has included raids by Rwandan and Congolese forces). Now the FDLR, hiding in the bush and linked with various armed groups, including Mai Mai militia, mostly exploit and abuse the local civilian population. In addition to subjecting IDPs to arbitrary arrests, kidnappings, extortion and forced taxation, there are recent accounts of widespread atrocities at the hands of the FDLR, including murder, rape and torture.

In the meantime, the so-called “positive forces” in the conflict have been preying on civilians as well. It was recently reported that four Congolese army officers (including a general) accused of rape (including the rape of children) are still in active military service. Another recent report reveals that members of the UN peacekeeping mission in DR Congo (known as MONUC) may also be engaged in the sexual abuse of Congolese women (over the years there have been other reported instances of sexual abuse by MONUC troops).

At the same time, in a report issued a little over a week ago, the human rights group Global Witness accused a number of multinational corporations of “turning a blind eye” to the source of Congolese minerals they purchase and then sell to manufacturers around the world. The report indicates that these corporations, such as Afrimex, Traxys, and Amalgamated Metal Corporation, are knowingly purchasing minerals (including gold and wolframite) mined through the exploitation of civilians controlled by both the Congolese military and rebel groups. According to the report:

The stakes are high, and those benefiting from the illicit exploitation of resources will not be willing to give up these riches easily. As evidence by patterns of the last 12 years, it is in the interests of all sides in the conflict, as well as unscrupulous businessmen, to prolong the anarchy, as it delivers financial benefits without accountability.

In an article recently published in the Fordham International Law Journal, I have called for the United States to launch an “African Marshall Plan” for DR Congo — a massive resource and assistance infusion to bring about wide-ranging, organic change and secure the benefits of DR Congo’s free elections and the recent Nairobi/Goma peace process. To date, U.S.-DR Congo policy has been formulated in dribs and drabs, limited in quantity relative to the enormity of the crisis, and without an overarching plan for promoting legal coherence and yielding long-term, systemic change. To be effective, I submit, U.S.-Congolese policy must be crafted and executed with a holistic approach– security, disarmament, infrastructure, food assistance, and health care must all undergird greater efforts to establish the rule of law (including efforts to curb corporate predations). And from a procedural perspective, U.S. policy should be better coordinated internally (rather than the current farrago of individual agency initiatives).  It was announced within the past couple of days that Hillary Clinton will be visiting DR Congo on her upcoming trip to Africa.  One would hope she will be thinking about these larger policy issues during her visit.

Of course, to be successful, any such effort would have to include the participation of, and coordination with, other major donors such as the EU (although, as I point out in my article, due to various bureaucratic and financial restraints, the EU seems limited in the extent of effective assistance it can provide). And I’m not suggesting that this would look anything like an exact replica of the original Marshall Plan. But I do think those two words conjure up the idea of large-scale, effective, coordinated assistance. That’s what’s needed.

Not only is it the right thing to do and the best policy from a humanitarian perspective, it is in the U.S. and global interest that a country the size of Western Europe, lying at the heart of the African continent, attain stability. As the New York Times has noted, “When Congo shakes, Africa trembles.”

Asylum for Battered Women and Beyond

by Gregory Gordon

Recently, advocates for asylum seekers fleeing severe and state-sanctioned domestic violence in their home countries appeared to score a significant victory. In the case of a woman who requested asylum based on fears she would be murdered by her common-law husband in Mexico, the Department of Homeland Security filed a brief in April (unsealed recently as reported by the New York Times here) revealing Obama administration support for the proposition that battered women asylum applicants may be eligible for resettlement in the United States.  (As recently as last year, DHS under the Bush administration had argued in the same case that domestic violence victims could not meet the standards of American asylum law.)

So this represents the latest change in position for the executive branch, which has vacillated for over a decade on this issue in grappling with the case of a Guatemalan domestic violence asylee, Rody Alvarado. Ms. Alvarado endured ten years of brutal beatings at the hands of her Guatemalan soldier husband. Among other things, he raped and sodomized her on a regular basis; kicked her genitalia, causing profuse and sustained bleeding; pistol-whipped her; and violently kicked her in the spine when she refused to abort their fetus. Despite repeated requests, the government and the courts refused to protect her. She tried to escape within Guatamala but her husband found her and practically beat her to death. In 1995, to save her life, she fled to the United States. And the following year a San Francisco immigration judge granted her asylum. But the Board of Immigration Appeals reversed the decision in 1999 and ordered Ms. Alvarado’s deportation to Guatemala.

As a result of the Alvarado decision (Matter of R-A-), women fleeing a wide range of gender-based human rights violations were denied asylum. Desperate victims of sexual trafficking, gang rape, and domestic violence could find no safe haven in the United States. In January 2001, at the very end of the Clinton administration, Attorney General Janet Reno overturned the BIA’s ruling and ordered it to adopt a new decision after the issuance of regulations on the subject of gender asylum. Those regulations were never finalized by the Bush administration, which made noises (via AG John Ashcroft) about deporting Ms. Alvarado but never got around to doing it (although in September 2008 AG Michael Mukasey ordered BIA to reconsider the case, removing the requirement that it await the issuance of regulations). And so the case remained in a state of limbo…

Gacaca’s End and Its Legacy

by Gregory Gordon

The Rwandan government announced today that it will stop taking new gacaca cases as of July 31st and that it intends to wind down gacaca operations within five months. Gacaca is a traditional local justice procedure (gacaca roughly means “justice on the grass” in Kinyarwanda) that the government modified to process the staggering number of low-level genocide cases and help reconcile perpetrators with their communities. Starting in 2002, the Rwandans  began operating a system of more than 10,000 gacaca courts. Regardless of what one may think about its merits, the gacaca experience has represented a Herculean task with hundreds of thousands of cases processed in the past few years. In the words of Lars Waldorf, it was mass justice for mass atrocity. But was it successful? I was asked today on the BBC World Service (interview starts at the 18:53 mark) about gacaca‘s legacy and I noted that it was mixed.

Gacaca has certainly helped clear out Rwanda’s shamefully overcrowded prisons and overwhelmed domestic courts. And, in theory, it has conferred the advantages of community-based restorative justice – local participation, perpetrator-victim confrontation and reintegration, community healing, and use of an organically grown, culturally resonant procedure. In so doing, it has nominally eschewed the top-down Western retributive approach that focuses on punishing the individual (what Mark Drumbl calls “Western legal liberalism”).

But I also made reference in the interview to gacaca‘s most visible problems – its endemic corruption (which the Rwandans have attempted to deal with) and alarming due process deficits (that portion seems to be edited out of the interview — but it is important as I suspect gacaca’s imminent demise, coincident with Rwandan criminal justice system reform initiatives, is motivated in part by the government’s efforts to make extradition to Kigali look like a more attractive option to Europeans harboring genocide suspects — not that gacaca is used for such suspects but general justice system appearances can be important). I noted, and academic literature has amply explored, the Frankenstein monster assemblage of a local, non-systematized, oral-tradition civil dispute mechanism (traditional gacaca) with a codified, state-centric criminal justice bureaucracy (what the Rwandan government has been operating). Clearly, traditional gacaca was not meant for hearing cases of genocide.

But somewhere in the process of retrofitting it for mass atrocity, gacaca appears to have lost its core restorative justice defining qualities. In my upcoming article “Complementarity and Alternative Justice” (to be published in the Oregon Law Review), I explore this dilemma in greater depth. I still believe that there is hope for successfully using traditional alternative justice mechanisms to deal with gross human rights violations. For that, a better calibrated hybridization will be necessary. Posterity may not ultimately view gacaca as the ideal blueprint; but it will likely appreciate it as an invaluable testing ground.

Spanish UJ — From Pinochet to Purgatory?

by Gregory Gordon

For critics of universal jurisdiction, Spain’s UJ statute has become the poster child for accusations of excess. How strange it seems that roughly ten years ago it was so widely celebrated as the provision that brought down General Augusto Pinochet. Spain’s indicting the former Chilean dictator and Britain’s detaining him on the attendant arrest warrant and extradition request is still hailed by many as a watershed moment in international law – a breakthrough perhaps as transformative as the Nuremberg trials themselves. So what happened?

For one thing, the Spanish National Criminal Court (or Audencia Nacional), open to private litigants supported by aggressive examining magistrates (such as Pinochet’s nemesis, Baltasar Garzón ), has seemingly become a breeding ground for politically-charged prosecutions having little or no connection to Spain. Investigations have been undertaken against high-ranking American officials including Dick Cheney and Condoleezza Rice related to the torture of terrorism suspects. Seven Israeli politicians and military officers, including former defense minister Binyamin Ben-Eliezer, are the subject of a probe because of a July 2002 Gaza Strip airstrike that resulted in fourteen civilian deaths. Chinese officials are being investigated for abuses in Tibet and forty Rwandan army officers have been indicted in connection with alleged post-genocide reprisal massacres. Critics cry that Spanish UJ has been hijacked by activists pursuing political agendas and settling scores. The Spanish government seems to concur and has been opposed to these far-flung global justice efforts. In fact, Spain’s public prosecutor’s office has openly challenged the UJ power of the Audencia Nacional. And since the heady days of Pinochet, only one defendant has been tried and sentenced under the Spanish UJ law (Argentine naval captain Adolfo Scilingo, who turned himself in to Garzón in 1997 and was ultimately condemned to 640 years in jail for “Dirty War” offenses).

Pressure on Spain to rein in the Audencia Nacional has been exerted by foreign leaders from across the globe and it appears that Madrid, eager to remain a player on the international stage, is ready to cry uncle. The left-leaning Spanish government (with rare bipartisan support from Spanish conservatives) is sponsoring far-reaching UJ legislation that would restrict the scope of future cases to those in which: (1) the victims are Spanish; (2) the alleged perpetrators are present in Spain, or (3) some other clear link to Spain can be demonstrated. On June 25th, the measure overwhelmingly passed the Congress of Deputies (the lower house of parliament) by a vote of 341-2. Passage in the Senate is considered to be a foregone conclusion. The amendment will not have retroactive effect so the most controversial cases may not go away.

Still, NGOs (such as Human Rights Watch here) and certain commentators (such as IntLawGrrls here) have cried foul. They see the Spanish National Criminal Court as the last refuge for victims who can seek justice in no other venue. I have to confess to mixed feelings. I can think of no crusades with higher stakes than the global fight against impunity and effective UJ has to be a part of that. I wholeheartedly cheered the Pinochet outcome in the House of Lords way back when. But it does seem like a reassessment of the Spanish formula is now in order. UJ should never be exploited as a political leverage mechanism but, as noted above, Spain’s system appears to have been quite vulnerable to that tactic. According to World Politics Review (in an article by Soeren Kern):

Spanish lawmakers are now worried that the media-savvy judges are more interested in scoring political points than in upholding the law. They are also concerned that Spain’s judicial system is being hijacked by activists who are out to pursue a political agenda. Indeed, most of the cases, including those involving Pinochet, Israel and the United States, have been the handiwork of Gonzalo Boyé, a “human rights lawyer” who earned his law degree through correspondence courses while serving a 10-year sentence in a Spanish prison. Boyé was convicted of collaborating with the Basque terrorist group ETA in the kidnapping of Emiliano Revilla, a well-known Spanish businessman. Prior to that, Boyé was a member of the Movimiento de Izquierda Revolucionaria, a Marxist-Leninist revolutionary group based in Chile, where Pinochet was his nemesis.

And then much has changed since Spain first enacted its UJ law in 1985. Aside from the scores of countries that have since passed their own UJ statutes, as well as the advent of the ad hoc and hybrid tribunals, the International Criminal Court has come into existence and is now operational (in fact, many nations have adopted UJ laws to satisfy their Rome Statute obligations). There is less need for Spain to serve as a global court. And the current version of Spanish UJ lacks checks and balances (such as an authorizing prosecutor).

So does it still make sense for the country that gave us Don Quixote to keep judicially tilting at superpower windmills? Some might argue that’s not the point. Garzón and his band of crusading magistrates bring to light human rights violations otherwise easily obscured by world powers flexing their muscles. The purpose of Alien Tort Claims Act actions in the United States, they might note, is typically not to obtain actual money damages; it’s about raising awareness and exposing malefactors. In this context, it’s nice to know that someone is at least investigating Dick Cheney and thumbing a nose at Chinese threats and thuggery.

But the cost may be too great. The lack of safety valves and checks and balances in the Spanish system is problematic. As is the Spanish statute’s disregard for the principle of complementarity – there is no statutory mechanism in place to halt a case when territorial courts have in good faith launched their own investigation or initiated their own prosecution (although there is admittedly a Spanish Constitutional Court ruling to that effect, Spain’s seeming disregard of an Israeli investigation into the Gaza case gives pause). And nothing in the current statute mandates the slightest nexus between the forum state and the case or its parties. Finally, there is no consideration of gravity in the UJ trigger calculus. This will be the subject of an entire article I have started writing, but I submit we need a global Universal Jurisdiction treaty to foster consistency and fairness. Short of that, Spain’s imminent reform is probably a good start.

Sweden Decides to Extradite . . . And Then Changes Its Mind

by Gregory Gordon

A couple of weeks ago, Sweden did something unprecedented for an EU nation — it indicated it would proceed with the extradition of an accused Rwandan génocidaire to Kigali. Sylvere Ahorugeze, a 53-year-old former director of Rwanda’s civil aviation authority, is implicated in the 1994 murder of a group of civilians in the Kigali suburb of Gikondo. He was arrested on an international warrant last year at the Rwandan Embassy in Stockholm, where he was attempting to renew identification papers for his wife (he had previously been detained on similar charges in Denmark, where he had been a resident for several years, but was released and supposedly awarded damages because of an alleged lack of evidence). The Swedish Supreme Court ruled on May 26th that there were no legal obstacles to extraditing the man. On July 9th, the Swedish Justice Ministry announced it agreed. It was undoubtedly influenced by the recent domestic justice reforms initiated by Rwanda in response to concerns expressed by various European governments (the United Kingdom, France, Germany, and Switzerland have all recently refused to extradite Rwandan genocide suspects). Among other things, the Rwandans have abolished the death penalty and initiated a witness protection program.

Ahorugeze promptly filed a petition with the European Court of Human Rights, which has granted provisional measures asking Sweden not to extradite him “until further notice.”  (I have not been able to find a reference to the case on the ECHR website and press reports have not alluded to interim measures but this is clearly what must have happened).  Sweden, for its part, complied with the request.  Professor William Schabas has noted on his blog that the Europeans are holding the Rwandans to an unfair standard. He notes that the former are following the lead of the International Criminal Tribunal for Rwanda, which has refused to authorize the transfer of several suspects that it would rather not try itself because of concerns regarding due process standards and judicial independence. According to Professor Schabas:

They insisted that Rwanda, an impoverished third world country, provide a witness protection programme for defence witnesses that would not exist in most European countries, and dismissed Rwanda’s proposed solution to address the problem of reluctant defence witnesses living abroad, which was to hear them using videoconference, as being unfair. Be that as it may, the unintended consequence of these recent rulings of the International Tribunal, spurred on by certain human rights NGOs, has been to enhance impunity, not reduce it. Several genocide suspects, including four in the United Kingdom, have simply been released.

In the meantime, as noted above, the Rwandans have made improvements to their justice system and initiated legislative reforms. And, in light of these developments, ICTR Chief Prosecutor Hassan Jallow has indicated a willingness to reapply for authorization to transfer cases to Rwanda. So perhaps in the end the Swedes will ultimately have the blessing of the ECHR (but that might take some time) and the extradition will proceed. I suspect, however, that there are lingering concerns about executive meddling in Rwandan judicial affairs. One would hope any such worries will soon be assuaged but, sadly, one should probably not hold one’s breath (and certainly the Kagame government, even if currently focused on appeasing the Europeans, has not been a model democracy). In the meantime, it is certainly unacceptable for Rwandan mass murderers to take advantage of this state of limbo and evade justice.  Justice in Rwanda may never be perfect but it’s probably at the point of being good enough.  After all, the entire world needs a proper “completion strategy” for bringing Rwandan genocide perpetrators to justice.  Let’s hope the bulk of it can be done properly in Rwanda.  And soon.

Should Mere Presence in the Forum State Be Enough to Trigger Universal Jurisdiction?

by Gregory Gordon

Related to my post yesterday about the presence requirement for invoking universal jurisdiction (with respect to the UK’s new genocide law amendment), QC Ken Macdonald (visiting professor at the London School of Economics) has proposed in The Times an interesting possible solution to deal with what I would call the “Colin Powell” (or, per Macdonald, “Henry Kissinger”) dilemma:

Of course a law can easily be crafted to protect our national sense of decency, while at the same time avoiding vexatious and foolish litigation at the expense of a batch of ageing Henry Kissingers. Indeed, we already have laws that allow us to arrest visiting torturers and hostage takers. They have been applied sensibly and haven’t led to diplomatic meltdown. Why should we be able to prosecute visiting torturers but not war criminals and génocidaires? The simple device of requiring the Director of Public Prosecutions to consent to the instigation of proceedings would prevent abuses and ensure that only appropriate cases can be brought.

It bears pointing out that a mere presence requirement certainly does not represent the most liberal version of universal jurisdiction. I believe this passage from the Joint Separate Opinion of ICJ Judges Higgins, Kooijmans and Buergenthal in the Democratic Republic of the Congo v. Belgium case provides some helpful context with respect to the UK law:

But a State is not required to legislate up to the full scope of the jurisdiction allowed by international law. The war crimes legislation of Australia and the United Kingdom afford examples of countries making more confined choices for the exercise of jurisdiction. Further, many countries have no national legislation for the exercise of well recognized forms of extraterritorial jurisdiction, sometimes notwithstanding treaty obligations to enable themselves so to act. National legislation may be illuminating as to the issue of universal jurisdiction, but not conclusive as to its legality. Moreover, while none of the national case law to which we have referred happens to be based on the exercise of a universal jurisdiction properly so called, there is equally nothing in this case law which evidences an opinio juris on the illegality of such a jurisdiction. In short, national legislation and case law — that is, State practice — is neutral as to exercise of universal jurisdiction.

It should be noted that some municipal jurisdictions, such as Spain, permit initiation of cases even if the defendant is not physically present in the forum state (although that may be changing — more on that in a later post). Certain versions of this type of UJ have not even required a nexus with the territory, perpetrator or victim (Belgium’s old universal jurisdiction statute is a prominent example of that). And those jurisdictions have also permitted private citizens to initiate criminal actions against would-be defendants. I have argued elsewhere (including as part of a presentation I made at a London UJ conference last year), that this is going too far. But I do not consider “mere presence” to be problematic – especially if a public official countenances initiation of the prosecution. Macdonald provides a compelling conclusion:

The consequences of his failing to do so [providing for a mere presence UJ trigger] are frankly unappealing. According to a report in The Times in 1999, the individual suspected of supplying, on an industrial scale, most of the machetes used in the Rwandan slaughters [Félicien Kabuga] stopped over in Britain on holiday. If the law is not changed, this unusual tourist is safe to return at any time. Recent research by the Aegis Trust has also carefully documented the scores of suspected war criminals who are believed to be present in the UK. They include suspects from Iraq and Zimbabwe, warlords from Somalia and Afghanistan, and suspected génocidaires from Rwanda. As you would expect, since they cannot be prosecuted here, these men calmly arrive for a wide variety of reasons. Some come for medical treatment and others to do business but, unsurprisingly, they take care to avoid residency. They’re not stupid and they know that they risk nothing more alarming than deportation — where that is even possible. But all too often it isn’t and we find ourselves caught in a devil’s trap. We cannot prosecute these men because they’re not UK residents, but our courts won’t deport them either in case they face mistreatment on their return. Certainly the human rights of suspects must be respected, but the dilemma becomes very stark in the face of atrocity crime. They end up living among us while their victims wait for justice. If the Government opposes the Carlile amendments, our message to war criminals will be a good deal less stern than Washington’s. And the people who have committed these ghastly crimes will continue to haunt us. But an important part of making the world a safer place for innocent people is to make it a lot less safe for their tormentors. Our law should stop providing comfort to international criminals.