The Briefing

Secrecy and Accountability in International Justice

Wednesday, January 29, 2014

In recent years, consumed by the war against al Qaeda, we have addressed secrecy and accountability in a homegrown way — concerned with information the American executive branch has kept to itself, what was shared with the Congress (though a transcript is often not made at the instance of both parties), and who should take the blame for things that go wrong.  This has been a preoccupying exercise, for no one likes to be labeled as the father of an irregular event, and when made the object of surveillance, the American people tend to be jealous of their privacy.  The collection of MUDS and LUDS — now famous as telephone ‘metadata’ — may be familiar to every street prosecutor (or at least, to this former fed), but it has indeed not required even a search warrant in a criminal investigation.  This will not lessen the startle of John Q. Citizen — who does not like to suppose that someone could be following his every move.

But in welcoming public discussion of accountability in the campaign against terrorism, we have allowed evasion of a different aspect of decency — the question of how we address the circumstances of conspicuous violence and mass destruction in civil wars.  This is, so often, tantamount to another form of terrorism, since armed factions often deride the idea of an organized state and have no scruple about attacking civilians.

We have set up international war crimes tribunals to deal with the cruelties of terroristic acts in recent civil conflicts, but we have allowed the bending of their judicial neutrality to suit a politics of convenience.  The fact that such acquiescence has many authors does not improve its rank flavor, for it is the opposite of accountability.  Despite the high idealism of investigators, lawyers and judges, more than crumbs have been swept under the rug, to preserve a record that suits the evolving politics of friends and allies.  Criminal courts should be known by what is prosecuted and punished, not what is shredded or buried in their files.  An “arrangement” of the French variety also leads to a rank distortion of the historical record, inconsistent with any ideal of even-handed justice.  Certainly it undercuts a policy of deterrence, instructing that much will be forgiven, and indeed forgotten.

Two examples should suffice for this meme of evasion, with its averted eyes of silence.  The first is the civil conflict in Rwanda, which cost the lives of nearly one million people.  At the urging of the United States, a Hague war crimes tribunal was established by the UN Security Council, acting under the chapter 7 powers of the UN charter.  The court was given a mandate to examine any violations of the law of war, as well as acts of genocide and crimes against humanity during the bloody events of the calendar year 1994.  Investigations and prosecutions were, of course, supposed to go where the law would take them, without playing favorites.

It was logical that UN prosecutors would focus first on the terrible slaughter in spring 1994 — when some 800,000 Tutsis and others were beaten and cut to death by the brute means of cudgel and machete, wielded by the legions of Hutu Interahamwe.  The witnesses to these crimes were still resident within Rwanda, and the active cooperation of the victorious Tutsi regime was necessary to make the charges stick.

But there was no justifiable reason for the International Criminal Tribunal for Rwanda to refrain from also investigating and prosecuting the wide variety of crimes (even of smaller scale) that were committed against the Hutu community.  When the international prosecutor attempted to do so, she was silenced by the United States, and eventually fired.  The immunity bath accorded to the Rwandan regime that took power in 1994 — with proof overlooked for the sake of a useful ally — did not serve to discourage the ongoing and wantonly destructive activities of Rwanda inside the Congo.

There has been virtually no discussion of this in the American press — or indeed even in the polite circle of lawyers who make a specialty of international criminal law.  It is akin to the crazy uncle in the attic of whom no one likes to speak — known to be embarrassing, but better ignored, lest it cast an aspersion on the family name.  But the de facto partiality of a war crimes tribunal can cheapen the currency of deterrence, and allows interested partisans to speculate that international criminal justice is a placeholder for imperial ambitions.  Even the key question of the immediate trigger of the 1994 war was tabled.  The genocide began when an airplane with two heads of state aboard — the Hutu president of Rwanda and the Tutsi president of Burundi — was shot down during its landing at Kigali airport, upon its return from Kampala peace negotiations.  UN prosecutors refused to pursue the issue, beyond an initial investigative memorandum, even though it fell squarely within their temporal and territorial jurisdiction, on the grounds that it was not as important as the ultimate killing fields — even though it was a triggering event of the genocide.  Certainly there is only one answer that would be convenient to the current regime in Kigali.

So, too, in the operations of the UN tribunal on the former Yugoslavia, a form of one-sided secrecy has regrettably interfered with the preferred transparency of international justice.  In particular, in the criminal trial of Serb leaders in The Hague, key minutes were obtained from Serbia’s military council to attempt to draw a link between the actions of the Bosnian Serbs in the Srebrenica massacre and the decisions and assistance of Belgrade.  The evidence was obtained after lengthy negotiations with the Serb regime, whose terms have not been made public.  But when Bosnia sued Serbia in the International Court of Justice for civil damages, for the same acts, these minutes were not made available to the civil court.  It was odd, to say the least, to have two parallel international tribunals proceed on radically different records, all the more so since civil trials are ordinarily broader in their acceptance of contested evidence.

With a halter on its collection of evidence, the International Court of Justice held that Serbia was at most responsible for a ‘failure to prevent’ genocide. This was seen by critics, including this writer, as deriding and diminishing the seriousness of the acts of violence that occurred.  One would hardly bring a civil case in order to have the crime at stake recategorized as diminutive.

So when national security and civil rights lawyers talk about the problem of secrecy and its effect on the protection of the rights of man, they should look not only at national law, but at the unwanted failures of international justice.  UN bodies answer to no one in particular.  The ‘adjustments’ that they make — even in the midst of a high profile effort to offer some form of international adjudication — too often go unremarked.   International prosecutors leave their homes and families to pursue difficult cases at considerable personal cost.  But it is a specialty, and if you want to get hired again, it is best not to complain too much — even when there is something to complain about.

Return to the Briefing daily for new insights from Peter BerkowitzBenjamin WittesJack GoldsmithMatthew WaxmanJessica SternShavit MatiasTod LindberghPhilip Bobbit, and Kenneth Anderson focusing on intelligence gathering in a digital age.