Archive for international criminal justice

A Few Interesting Follow-Ups to the Qaddafi Post

Posted in General Thoughts and Comments with tags , , , , on October 24, 2011 by hoisingm

For those who are interested in further reading:

Commentary from Professor Doebbler over at JURIST on the “extra-judicial killing” of Qaddafi and the dangerous implications that it might have: Curtis Doebbler, The Rule of Law and the Extrajudicial Killing of Muammar Gaddafi, JURIST – Forum, Oct. 24, 2011, http://jurist.org/forum/2011/10/curtis-doebbler-gaddafi-killing.php; and

News reports of action taken by a legal team in Sri Lanka to protect Saif Qaddafi from attack: http://www.srilankaguardian.org/2011/10/international-legal-team-demands.html

International Law and Vengeance

Posted in General Thoughts and Comments with tags , , , , on October 24, 2011 by hoisingm

As videos of Muammar Qaddafi’s bloody demise make their way through cyberspace, the world is left to wonder: What means this vengeance?  The question for international lawyers is: What’s law got to do with it?

To be sure Qaddafi is not a sympathetic character.  This is a man who ordered his own people exterminated like “rats.”  If anyone deserved to die a bloody, violent, painful, savage and humiliating death surely it was him.  It wasn’t long ago that we were saying the same thing about Osama bin Laden.  But here’s the problem with this position: We are supposed to be beyond it.  While U.S. and NATO involvement in the killing of Qaddafi is murky, what appears clear is that they were serving as a de facto air force for the Libyan rebels.  Such action pushes far past what could reasonably be interpreted out of the U.N. Security Council resolutions authorizing military involvement in Libya.  Moreover, as the videos of a bloodied, battered and defenseless—but still alive—Qaddafi show, he had been rendered helpless far before he was killed.  Under the Geneva Conventions and the laws of war his killing was clearly illegal.

Our fidelity is supposed to be to the rule of law, not to the law of the jungle.  As President Obama said in a speech at West Point in May of 2010, we should promote universal rights, including the right to a fair trial, “even when it’s hard.”  Despite this avowed policy, denouncements of the bin Laden and Qaddafi killings have been conspicuously absent from the public discourse.  Advocating for due process as opposed to a quick execution of someone as despicable as either Qaddafi or bin Laden (or Anwar al-Awlaki for that matter) is no doubt extremely difficult for the people who actually have to make those decisions.  They have lots of angles to consider, not least of which is the issue of exposure.  Recall that until the Libyan intervention in March, Qaddafi had been a useful ally in the War on Terror.  Who knows what ugly details would have emerged regarding the modalities of his cooperation had he been given the platform of a public hearing.  For his part, bin Laden probably would have been all too happy to describe the support he received from the United States during the Russian-Afghan war in the 1980’s.  But that’s the point.  It’s exactly in the face of uncertainty and risk that the we should all reaffirm our commitment to the bedrock values that we so readily espouse under less trying circumstances.

The Qaddafi and bin Laden episodes are not the first time that our values have been threatened by bloodlust.  Acting as defense attorney to the alleged perpetrators of the Boston Massacre in 1770, John Adams, future president and erstwhile patriot took up the unenviable task of defending the indefensible amidst public calls for vengeance.  In doing so he found refuge in the law.  “The law no passion can disturb,” he said.  “’Tis void of desire and fear, lust and anger.”  Lest Adams’ words be cast aside as mere zealous representation on behalf of his clients, he reiterated that the law treats both sides equally.  “On the one hand,” Adams said “law is inexorable to the cries and lamentations of the prisoners; on the other it is deaf…to the clamors of the populace.”  The acquittal of the accused reaffirmed colonial hold on the moral high ground and hastened the American declaration of independence from tyrannical rule.

The legacy of the Nuremberg and Tokyo military tribunals in the aftermath of World War II confirm international commitment to the rule of law.  Would it have been easier to summarily execute suspected Nazi war criminals?  Did they deserve it?  Churchill certainly thought so, yet Roosevelt held firm.  In the wake of the most destructive war in human history, the international community showed constraint in its thirst for vengeance.

Such prevarications may be cast aside as irrelevant.  The common refrain that “the world is better off without” individuals such as Qaddafi or bin Laden is difficult to counter.  These were horrible men.  Furthermore, it is often asked: Wouldn’t any trial be unnecessary when the guilt of the accused is so obvious?  This is not just a question about who they were, it’s also a question about who we are.  When we circumvent the rule law in the interests of expediency, we diminish ourselves and betray our values.  Between summary execution and show trials there is room for justice.

And what of peace?  Can we honestly say that through vengeance the Libyan people have improved their lot?  Would the transition from bloody civil war to good governance and enduring peace not have been better served by a public trial of the man most responsible for untold suffering?  If experience has taught us anything it is that the transition from war to peace is a long and difficult one.  The killing of Qaddafi may signal a new day in Libya, but the prospects of that new day are not exactly clear.  Violence generally begets more violence, not peace.  At some point one cycle has to stop so another can begin.  It is possible that what comes next in Libya may be worse than what came before.

International Criminal Justice Symposium Video Link

Posted in Discussion Papers and Commentary, General Thoughts and Comments with tags , on January 10, 2009 by jeremyleong

Happy New Year! Apologies for the radio silence over the last few weeks.

Normal service resumes.

We kick start the New Year with video links to last year’s international criminal justice symposium at the Fletcher School. We are grateful to the Fletcher School’s law faculty for providing the link.

Please see http://fletcher.tufts.edu/InternationalCriminalJustice2008/video.shtml

 

Discussion Paper: “Terrorism and International Criminal Justice” by Pierre d’Argent

Posted in Discussion Papers and Commentary with tags , , , on December 1, 2008 by jeremyleong

As promised, we are hosting papers from the Fletcher School’s recent symposium on international criminal justice. (See https://fletcherfila.wordpress.com/2008/10/22/international-symposium-perspectives-on-international-criminal-justice-nov-14-15-2008/ and https://fletcherfila.wordpress.com/2008/11/17/john-bellingers-keynote-at-the-international-symposium-for-international-criminal-justice/)

 

Accordingly, we just posted a discussion paper entitled “Terrorism and International Criminal Justice” by Pierre d’Argent. D’Argent argues that terrorism should not be brought into the fold of international criminal justice. In particular, he distinguishes between the symbolic value of international criminal justice for war crimes etc and the symbolic value of international criminal justice for terrorism. He believes that using international criminal justice against terrorism actually “deprive(s) the State victim of the possibility of re-affirming the difference in legitimacy between its own violence and the violence of terrorists.”

 

The paper can be found at http://fletcher.tufts.edu/FILA/pdf/FILADiscussionPaperNo0208.pdf.

 

Please feel free to comment or respond.

John Bellinger’s Keynote at the International Symposium on International Criminal Justice

Posted in Discussion Papers and Commentary, General Thoughts and Comments with tags , , , , , on November 17, 2008 by jeremyleong

 

Over the weekend, the Fletcher School held an international symposium on international criminal justice. Current State Department Legal Adviser John Bellinger delivered the keynote address, “US Perspectives on International Criminal Justice”. The text of the speech can be found at http://www.state.gov/s/l/rls/111859.htm. Based on the speech, it appears that the US policy does not fundamentally resist the application of norms of international criminal justice. Bellinger quite clearly stated that the US has supported various ad hoc international tribunals such as the Special Court for Sierra Leone, the ICTR and ICTY and the Khmer Rouge Tribunals. Yet, the concerns regarding the ICC, in particular, the concerns of the US military, were equally unequivocally expressed.

 

Some folk at Opinio Juris had something to say about the speech which prompted a reply from Mr. Bellinger. (See http://opiniojuris.org/2008/11/15/bellinger-on-international-criminal-justice/ and http://opiniojuris.org/2008/11/16/john-bellinger-responds-to-my-post/.) The crux of the debate being that the speech had not adequately addressed concerns such as “not giving the Security Council (and the US, with its permanent veto) control over the ICC’s docket, not exempting Americans from the territorial jurisdiction of the Court, etc.” 

 

That aside, from an analytical standpoint, the US view of international criminal justice may provide a nice example for study of “tipping points” to commitments to international treaty obligations. Are there common “tipping points” which influence whether the US joins a treaty or not? It may be worthwhile to review a variety of international treaty negotiations and see if there are nuanced commonalities where the US has signed and ratified and where the US has not. I suspect that some regression analysis would be required. Perhaps, a list of causal variables may be produced from there. Domestic causal variables will certainly be important. This may shed some light on the divide between concluded treaties and “what could have been” treaties and could assist international policy makers in crossing that divide.

 

We are expecting to post some of the papers from the symposium as discussion papers soon. In particular, some outstanding work was presented on changing the preferences of stakeholders in the international justice system. Look out for that.

International Symposium: Perspectives on International Criminal Justice (Nov. 14-15, 2008)

Posted in Upcoming Events and Announcements with tags , , on October 22, 2008 by jeremyleong

The Fletcher School, with the support of the American Society of International Law, Centre de recherche sur les droits de l’homme et le droit humanitaire (C.R.D.H., Université Paris II Panthéon-Assas), the Centre sur l’Amérique et les Relations Transatlantiques, Paris (C.A.R.T., Paris), the French Consulate of Boston, and the Présidence Française de l’Union Européenne will be holding an international symposium on international criminal justice on Nov. 14-15, 2008. “The goal is to foster fruitful and multidisciplinary debate among prominent specialists in the field, thus contributing to an assessment of international criminal justice and to the global debates surrounding it.”

 

The symposium will be held at the Fletcher School and topics covered will include:- Global Dilemmas of International Criminal Justice; US & EU Divergent Approaches to the International Criminal Court; The UN Security Council and International Criminal Justice. Speakers include Fletcher’s own Profs. Hurst Hannum, Michael J. Glennon, Ian Johnstone and Louis Aucoin and other scholars and policy makers from both sides of the Atlantic.

 

More information and registration can be found at:- http://fletcher.tufts.edu/internationalcriminaljustice2008/default.shtml