Copyright © Daniele Archibugi, Alice Pease 2018

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First published in 2018 by Polity Press

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ISBN-13: 978-1-5095-1261-4

ISBN-13: 978-1-5095-1262-1(pb)

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Library of Congress Cataloging-in-Publication Data

Names: Archibugi, Daniele, author. | Pease, Alice, author.

Title: Crime and global justice : the dynamics of international punishment/Daniele Archibugi, Alice Pease.

Description: Malden, MA: Polity Press, [2017] | Includes bibliographical references and index.

Identifiers: LCCN 2017021854 (print) | LCCN 2017036602 (ebook) | ISBN 9781509512645 (Mobi) | ISBN 9781509512652 (Epub) | ISBN 9781509512614 (hardback) | ISBN 9781509512621 (pbk.)

Subjects: LCSH: Criminal justice, Administration of. | International criminal courts. | International criminal law. | Universal jurisdiction. | War crime trials. | War crimes--Political aspects.

Classification: LCC K5001 (ebook) | LCC K5001 .A949 2017 (print) | DDC 345/.0773--dc23

LC record available at http://lccn.loc.gov/2017021854

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Tables

1.1. International criminal justice: mechanisms, institutions and indicted individuals

2.1. Principal differences between national and international criminal justice

3.1. Accomplishments and problems of cosmopolitan criminal accountability

Figures

1.1. The Nuremberg Trial

1.2. Rally in support of the International Criminal Court, Rome, 17 July 1998. ‘Everybody on the ground!’

1.3. The signing of the International Criminal Court Statute, Rome, 17 July 1998

2.1. Jacques Vergès, the devil’s advocate, defending Nazi criminal Klaus Barbie in 1987

4.1. Chilean dictator Augusto Pinochet with US Secretary of State Henry Kissinger, 1976

4.2. London rally urging the extradition of General Pinochet after he was arrested in London, October 1998

4.3. Justice abroad: the Pinochet proceedings in Spain and in the United Kingdom (1998–2000)

4.4. Justice at home: proceedings against Pinochet in Chile (2000–6)

5.1. Poster released by the US Department of Justice in 1999 offering head money for Karadžić, Milošević and Mladić

5.2. Timeline: the Milošević and Karadžić proceedings

5.3. Slobodan Milošević in The Hague

5.4. ICTY Prosecutor Carla Del Ponte shaking hands with NATO Secretary-General, Jaap de Hoop Scheffer

5.5. Karadžić’s initial appearance at the ICTY in The Hague, August 2008

5.6. A Serbian supporter wearing a T-shirt with images of Karadžić and Mladić

5.7. Relatives of the victims in Sarajevo following Karadžić’s trial

6.1. Cards distributed by the US Defense Intelligence Agency to American troops during the invasion of Iraq of March 2003

6.2. Saddam Hussein’s capture by the US army in December 2003; before and after shaving

6.3. Timeline: the making of the Iraqi High Tribunal

6.4. Timeline: the Dujail trial

6.5. A poster of the Stop the War Coalition

7.1. Amnesty International’s poster of some of the key fugitives from the International Criminal Court

7.2. A poster of the Coalition for the International Criminal Court calling for the arrest of Omar al-Bashir

7.3. Timeline: the indictment of Omar al-Bashir

7.4. Sudanese president al-Bashir travelling abroad in spite of the arrest warrant from the ICC

8.1. Determinants and outcome of global judicial accountability

10.1. Archbishop Desmond Tutu at the South African Truth and Reconciliation Commission

10.2. A Gacaca court meeting in Rwanda, 2006

10.3. Jean-Paul Sartre and Simone de Beauvoir, among the promoters of the Russell Tribunal for War Crimes in Vietnam, 1967

10.4. Gabriel García Márquez, Vladimir Dedijer and Lelio Basso at the Russell Tribunal on Torture in Latin America, Rome, 10–17 January 1976

10.5. The reading of the ruling of the Russell Tribunal on Torture in Latin America, Teatro Argentina, Rome, 1976

10.6. Richard Falk’s opening speech at the World Tribunal on Iraq, Istanbul, 23 June 2005

10.7. Citizens from Weimar taken by US troops to visit the concentration camp at Buchenwald, 18 April 1945

It is now almost three decades since a new deus ex machina appeared in the political landscape: global criminal justice. Since then, numerous international and hybrid criminal tribunals have been created, a new International Criminal Court has been set up, and national courts have become much more willing to open investigations into, and make indictments against, crimes unrelated to their territory. Confined for decades within states and administered in full autonomy by governments, criminal justice is now globalising.

This book presents a critical assessment of what has been achieved so far. We argue that, in spite of all good intentions, the new global criminal justice system has ended up in the hands of the most powerful governments, as a tool used for a showdown with their enemies. This has happened because judicial power is not as independent as might be hoped, constrained as it is by the interests of those who have instituted, funded and appointed the judges, namely national governments. To recover the original expectation that judicial devices will help to combat impunity, renewed efforts must be made by independent organisations and citizens willing to defend their rights against the brutality of criminals protected by organised power.

The protection of human rights has assumed a global dimension: from the Universal Declaration of Human Rights onwards, treaties and conventions designed to protect individuals from abuses exercised by their governments have multiplied. Special courts were even created, at the regional and global levels, to investigate and expose abuses committed in every part of the world. Sometimes victims could even argue their case before judges. Yet no institutional arrangements were in place to bring to trial a soldier, a policeman or, least of all, a government representative. If violations of human rights and heinous crimes were committed, the perpetrators to be judged and condemned were exclusively impersonal entities, i.e. states. Today, international criminal justice allows for something more: the naming and judging of the abusers in front of victims and their loved ones.

It is not the first time that criminal justice has appeared in world politics. It emerged originally at the end of the Second World War, when the victors instituted two new courts in Nuremberg and in Tokyo. It seemed that these two experiments represented the birth of a new legal culture, wherein those who committed horrific crimes would be judged in a fair trial before global public opinion. First and foremost this justice was intended to punish those responsible for crimes committed in wartime. But Nuremberg also gave rise to a new hope: that rulers and their agents would be made accountable even for the crimes they committed against their own subjects.

Thus was born the great illusion that judicial institutions could be designed to counter the impunity of those who had the means to commit such crimes. Unfortunately, those hopes were soon frustrated and forgotten. For several decades, international criminal justice was sleepy and inept, blocked, like so many other potential advances, by the advent of the Cold War and the rivalry between the superpowers. After the brief post-war interlude, all states recovered their monocratic power to judge and condemn the crimes perpetrated by their subjects, but also, above all, the power of self-absolution for any crime they themselves had committed.

With the end of the Cold War, the discourse on international criminal justice regained its impetus. Thanks to the stimulus of human rights organisations, lawyers, magistrates and bold academics, governments were persuaded to create new courts and to resume outmoded procedures such as universal jurisdiction. This discourse was nurtured, first of all, by new hopes. The victory of liberal democratic regimes fed the belief that the use of violence in world politics could be reduced, wars could be limited, the arms trade regulated and genocides ended; that the abuses committed against human rights enshrined in a large number of vociferous statements could eventually be punished. It was hoped that disputes between states could be resolved with the tools of diplomacy and international law, and internal conflicts through peacemaking and peacekeepers. International criminal justice was to be an important additional piece of the jigsaw, part of the more general commitment of world politics to minimising the use of violence. It was only one piece, but possibly a decisive one, because it had to identify not only the collective responsibility of governments, political parties, armies and police forces, but also those individuals who had committed atrocious crimes or permitted them to take place.

Already in 1945, farsighted lawyers and politicians had argued persuasively that while Nuremberg was an important experiment it also had deep flaws. Its limitations were basically twofold: first, it was justice exerted by the winners against the losers and therefore lacked impartiality; second, the rules and penalties it applied had been approved after the crimes were committed. Any future international criminal justice system inspired by liberal values would have to avoid these mistakes a second time around. To what extent have the experiences of recent decades shown this to be the case?

The new international détente, the steep rise of democratic states, and the numerous agreements signed by governments should have led to an impartial system of global justice, a system with the power and the means to prosecute those responsible for the most heinous crimes and to compensate their victims. For that to occur, new multilateral tools based on legal certainty would have to be adopted. The advocates of a new civilisation based on international legitimacy argued that it was necessary to fight especially against the impunity of the strongest. Not necessarily because the weak commit fewer atrocious crimes than the strongest, but only because the weak, once defeated, are held to account for their actions without adequate judicial scrutiny. But when the strongest commit atrocities, to whom will they be held accountable? What political entity will be responsible for securing this new legal culture?

Thus entered on stage one of the vaguest concepts in political science: the so-called ‘international community’. What is meant by this expression? In its broadest sense, the international community certainly includes governments and the inter-state bodies created by them, such as specialised agencies like the World Food Programme or UNHCR, both of which have progressively increased their autonomy. But it also includes those organisations that address the planet’s problems without having a formal title: non-governmental organisations such as Amnesty International or Médecins Sans Frontières, but also a civil society composed of a powerful business community, religious faiths in turmoil, steadily growing tourist flows, and individuals who genuinely care about global problems.

Yet if we look at who is actually able to exercise the power to judge and to punish, we are forced to adopt a more restricted meaning of ‘international community’; the players are limited and just a few actors remain: governments and their representatives in international organisations. Almost all the judicial institutions described in this volume are the outcome of what governments have decided to support, either individually or through treaties. A perhaps irreconcilable contradiction then emerges: why should members of governments voluntarily create criminal-control tools that will encroach on their own work? In the sphere of inter-state relations every government defends its autonomy with tooth and nail, and sovereigns, in Thomas Hobbes’ words, are ‘in the state and posture of gladiators’, ready to fight, or at least to compete (Hobbes, 1651/1991: Ch. 13). Could governments therefore abandon their perennial rivalry and submit their actions to an impartial and supranational criminal tribunal? Governments have in fact created such courts and structures, but the dynamics of bringing a case to them need to be explored in the real world.

The discourse on the new system of international criminal justice was more optimistic. It cultivated the hope that it was possible to create impartial rules and institutions, and that crimes could be judged on their own terms rather than in terms of the power held by the suspect’s state of origin. It hoped, and still hopes, that once governments have set up new institutions, they could graft a new dynamic in which the courts gradually become autonomous, as has happened in democratic states where the judiciary has progressively consolidated its independence from the executive.

Within the narrow confines of international criminal justice there thus remerges the more general discussion about the rules that affect world politics. Followers of the realist doctrine in international relations believe that governments act only in their own interests and that they choose to cooperate with others only when doing so works to their advantage. Their rivals the constructivists, however, think that international structures will provide sufficient benefits such as to guarantee a government’s interests and desire to participate, because the costs of exclusion are greater than those incurred through cooperation.

Applying their paradigm to international criminal justice, realists are keen to consider this project impossible, and in any case will assume that outcomes will always be manipulated by governments. They remind us that it is not the potential victims who sign conventions on human rights, create and fund the courts, or appoint judges and make policemen, soldiers and prisons available; it is, on the contrary, governments, and between them the potential executioners. For realists, international criminal justice is just one (expendable) tool in the fight for power, like armies, barracks and ammunition – tools in the hands of political players in the world arena that are used, not for moral reasons, but as ways to achieve specific political objectives. Whoever is stronger will have the opportunity to make better use of these tools, by virtue of the power at their disposal rather than any ethical argument.

Constructivists, by contrast, argue that world politics is no longer the exclusive arena of competition between governments. Within each state there are heterogeneous forces: governments and parliaments, majorities and opposition, trade unions and businesses, ethnic minorities and civil society. These forces have an interest in limiting power and, above all, its abuses. Within individual states, they manage to tame the power of the executive through checks and balances. It is therefore legitimate, the constructivist argues, to cultivate the hope that a coalition of global forces could also succeed in creating international control devices for the worst crimes.

*

It has been almost thirty years since the Cold War ended and the discourse on the international accountability of leaders reopened. We need to examine the extent to which the international criminal justice system has lived up to expectations, and what it has actually achieved. Most importantly, we need to ask what can be done to bring the project of global criminal justice closer to its original ideals. These are the issues addressed in this volume.

Part I is dedicated to the history and objectives of international criminal justice. The first chapter looks at the ways in which it has developed over the decades and through various institutional devices. Nuremberg cast its shadow on all subsequent developments, but the tools are now varied and increasingly complex, including ad hoc international and hybrid tribunals, the creation in regalia of a permanent International Criminal Court, and the recourse of national judiciaries to universal jurisdiction. The second chapter considers the stated goals of international criminal justice. Here there are often profound differences between the original design and its implementation, and we strive to identify the hidden objectives that the international community seeks to achieve through the criminal process liturgy. We discuss here how spectacular, even theatrical, international criminal justice trials need to be, and how both the prosecution and the defence try to achieve this. Chapter 3 looks at international criminal justice in relation to the cosmopolitan project. The idea that there can be global judicial accountability responds to at least two cosmopolitan aspirations: to ascertain individual responsibility regardless of the state of membership of each; and to create impartial global institutions that are superior to national institutions and designed to resolve conflicts by minimising the use of violence. Being a citizen of the world involves rights and duties in the criminal field: the right to be protected from abuse, including that inflicted by one’s own government; and the corresponding duty to be held individually accountable and punishable, if also needed by the world community.

Part II presents four illustrative cases of prosecutions and trials. Unlike a lot of the existing literature, we decided to focus on some well-known defendants rather than on institutional structures. Looking at indictments, trials and convictions can better explain the actual political evolution of international criminal justice, while focusing on statutes and institutions risks providing a distorted picture because too often they are empty shells. We consider four different legal tools, in the hope that the case studies will allow for some generalisations. Chapter 4 is devoted to the vicissitudes of the case against the Chilean dictator Augusto Pinochet, which began thanks to the indictment – on the basis of universal jurisdiction – made by a Spanish judge that caused a major international dispute. It had the effect of triggering significant legal controversies both in Chile and at a global level. But the most important effect of this overseas indictment was its triggering of legal controversies within Chile. The fifth chapter deals with the most famous defendants to appear before the International Criminal Tribunal for the former Yugoslavia: Slobodan Milošević and Radovan Karadžić. The ICTY, the first international tribunal to be set up since the Second World War, has successfully prosecuted two of the main actors of the civil war, and yet its impartiality is still disputed. Chapter 6 retraces the trial of Saddam Hussein before a national special court propped up by the US occupation forces. It was a process that created uproar not only for documenting Saddam’s crimes, already well certified by historical records, but for the absence of protections for the defence – to the point where three defence lawyers were murdered – and, above all, for the impunity enjoyed by George W. Bush and Tony Blair, the two world leaders responsible for the war of aggression. The seventh chapter examines the indictment of the Sudanese president Omar al-Bashir by the International Criminal Court. The ICC was founded with the objective of avoiding the inconsistencies and abuses that had undermined previous special courts. But for too many years the indictment for atrocities committed by an incumbent president has not produced any tangible effect other than discrediting the Court. Unfortunately this has led the new institution, founded with so much enthusiasm, to act so cautiously that it has become almost irrelevant.

Part III of the book deals with the prospects for international criminal justice. Chapter 8 offers a critical assessment in which we show how the hopes of the optimists have so far been betrayed. The main problem affecting international criminal justice has been its selectivity: only a few crimes have been prosecuted, and these were selected in accordance with the interests of the great powers. But in spite of the many shadows, there are also beacons of light: international criminal justice has had a positive impact both locally and globally, and this allows us to entertain some new hope. The ninth chapter discusses the proposals for reform of existing institutions and the vain attempts made so far. For the first time since the founding treaty of the ICC was signed in 1998, countries in Africa and elsewhere have threatened to abandon the institution, which obviously does not facilitate the task of making the Court itself stronger and bolder. The lesson to be learnt is that it is impossible to maintain such an ambitious project without taking more daring action than has so far been attempted. Finally, Chapter 10 offers some suggestions on what can be done outside of the inter-governmental logic. In accordance with the aspirations of the cosmopolitan project, we claim that governments must be stripped of their exclusive jurisdiction with regard to judging and punishing political crimes. Commissions for truth and reconciliation have often had a lasting and widespread impact, frequently in connection with the instruments of criminal justice. Opinion tribunals set up by civil society, although unable to impose penalties, show how the judicial logic can be a useful tool employed by the weak to denounce and condemn the abuses of the strong. These tribunals, organised with few resources and a lot of goodwill, have often filled a void left by the traditional legal culture and even today evoke the true responsibilities of liberal politics.

The discourse on international criminal justice remains unfinished – just as it did when the Nuremberg and Tokyo tribunals were demobilised. There are now attempts to direct the ICC towards new priorities that will not spark strong international disputes, such as crimes against archaeological heritage and the environment, or investigating politicians who have already become politically irrelevant. But the criminal justice instruments are still proliferating and political players have increasingly learned how to use them. More international crimes will no doubt be prosecuted in official courtrooms as well as in goodwill tribunals over the coming years. This book is intended as a contribution to making them fruitful in the perennial struggle to combat impunity.

Richard Falk has been generous with his tips and suggestions. As a direct participant in many of the judicial events here narrated, he has offered us his disenchanted but still optimistic outlook on the proceedings and campaigns of several decades.

Thanks also to Richard and Hilal Elver, who kindly hosted one of us on a writing retreat at the Orfalea Center for Global and International Studies at the University of California at Santa Barbara in November 2015. We are indebted to David Held for his critical suggestions and opportunities offered. Mary Kaldor has continued to provide an intellectual setting, thanks to the Civil Society and Human Security Research Unit at the London School of Economics and Political Science. The Lelio and Lisli Basso Foundation, promoter of the Permanent Peoples’ Tribunal, has been the place where many of the ideas presented here have been discussed since the 1970s. Analyses and proposals from the Coalition for the International Criminal Court have been a reliable source of information as well as of inspiration. Some of the material presented here has been discussed at the annual Conferences of the International Studies Association.

Many other colleagues have given us encouragement and suggestions, and we must at least mention Gareth Wallace Brown, Marina Chiarugi, Paola Ferretti, Marlies Glasius, Fernando Iglesias, Mathias Koenig-Archibugi, Silje Aambø Langvatn, Bill Pace, Luke O’Leary, Mary Pease and two Polity anonymous referees. We must also thank Susanna Rallo for helping us to assemble the images.

Thanks are also due to the Short Term Mobility Programme of the Italian National Research Council, and the Project Citi-Rights, promoted by the Directorate-General Justice of the European Commission, for the funding provided.

Louise Knight, Nekane Tanaka Galdos and Tim Clark from Polity Press have also provided invaluable support.

Since all the indicted mentioned in this book are men, we have not used gender-neutral expressions.