Owen Fiss vs. Moreno Ocampo. La justicia internacional no es un juego de niños

Artículo de Owen Fiss aparecido en el último Boston Review (hay respuesta de Moreno Ocampo en la misma revista). Lo discutimos un poco con Leo Filippini y Juan Bertomeu, quienes ven a Fiss diciendo cosas poco novedosas y no demasiado interesantes. Tiendo a no compartir esa opinión, creo que es un artículo bien informado, y bien afirmado en principios (muy largo para traducirlo, lo siento realmente)

Within Reach of the State
Prosecuting Atrocities in Africa Owen Fiss

Although human rights violations continue to plague Africa, in recent years greater effort is being made to bring to justice those responsible for such crimes. Some even venture that we are witnessing the end of impunity on the continent. The institutions seeking accountability for such atrocities, however, are international in character. It is a remarkable fact that although both the victims and the perpetrators of these crimes have been Africans, and although the abuses themselves have taken place on African soil, the pursuit of justice has been conducted largely by international institutions, and not Africans themselves.

At first glance, South Africa, which retained full control of its transition from apartheid, might seem to be an exception to this generalization, but this is not so. Although gestures were made at criminally prosecuting some of those responsible for human rights violations under the apartheid regime, the primary mechanism South Africa used to deal with its past was the Truth and Reconciliation Commission, and the proceedings conducted by the commission did not satisfy the elemental requirements of justice. Justice requires a public or official judgment of wrongfulness, or even more, illegality, as well as the infliction of some burden or punishment on the perpetrators of the wrong.

The South African Truth and Reconciliation Commission began its work in 1996 and submitted a final report in 1998. Influenced by the model pursued by Chile in 1990 in its transition from the Pinochet regime, the commission did not seek to hold accountable any of the persons responsible for apartheid or to punish those responsible for its many atrocities. The commission sought reconciliation rather than justice. Its work was premised on the idea that reconciliation of the victims of apartheid with their perpetrators would occur by uncovering the truth, and offered amnesty to those who testified and fully revealed their wrongdoing. Such testimony captured the public’s imagination, indeed that of the entire world. So did the testimony of thousands of victims. In the end, such public disclosure may have produced the desired reconciliation (I just don’t know—perhaps no one does). It might even have been necessary for the achievement of justice. But we should not confuse truth and the reconciliation it might have brought about with justice.

The transition in South Africa was a negotiated one, and we are assured by participants in that process that the leaders of the apartheid regime made it abundantly clear during the negotiations that they would not allow any system of accountability—indeed, they sought the kind of blanket amnesty that the government in Mozambique conferred on rebel forces in 1992 to bring an end to that country’s civil war. Given those conditions, the agreement obtained by the African National Congress may have been the best one possible, and perhaps necessary for a peaceful transition to occur at all. Yet we should not describe the result as anything more than that. Like truth, peace may be a precondition of justice or even one of its consequences, but it is not justice itself.

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In contrast with South Africa, the other proceedings responding to human rights abuses on the continent aspire to justice—they can properly be called trials—but they are largely in the hands of international authorities. One such authority is the International Criminal Court (ICC), which sits in the Hague and whose origins can be traced to the 1998 treaty known as the Rome Statute. The ICC is charged with trying individuals for crimes against humanity, war crimes, and genocide where the offense occurred in the territory of a signatory state, the accused is a citizen of a signatory state, or the UN Security Council authorizes a prosecution. The Rome Statute did not enter into force until 2002, once the requisite number of state signatories were obtained, and the court did not begin its work in earnest until 2003.

At the direction of the Security Council, in 2005, the ICC began its investigation of the genocide occurring in the Sudan and officially took jurisdiction of the case in 2007. Before taking the Sudan case, and acting in response to requests from the individual governments, the ICC initiated prosecutions against leaders of rebel forces in the Democratic Republic of the Congo and Uganda for human rights violations, most notably for forcibly inducting children into their fighting forces. Arrest warrants have been issued in the Sudan and Uganda cases, and the trial of the Congolese rebel leader Thomas Lubanga is scheduled to begin before the Hague tribunal later this year.

The ICC also seems to be moving toward prosecuting crimes that were allegedly committed in the Central African Republic (CAR) between October 2002 and March 2003. During that five-month period, CAR’s current president, General Fran��ois Bozize, seized power through force of arms, overthrowing an elected president. In December 2004 General Bozize, acting as president of CAR, filed a complaint with the ICC, accusing government forces and foreign mercenaries who had resisted him with many human rights abuses, including mass rapes of civilians. In May 2007, after concern over the delay was expressed by a pretrial chamber, the chief prosecutor announced that he was launching an official investigation of the charges.

The ICC is by no means the only or the first international tribunal to operate in Africa. Nearly 10 years before the ICC began its work, an international tribunal was specially convened for Rwanda by the UN Security Council. This tribunal sits in Arusha, Tanzania, and is charged with the task of trying those responsible for the genocide that occurred in Rwanda in early 1994 of some 800,000 persons, mostly Tutsis but also Hutus deemed sympathetic to them. The genocide was led by the Hutu regime then in power, and ended when an armed Tutsi front restored order and took control of the government. The tribunal was established by the Security Council at the behest of Rwanda; the UN appoints the staff and funds the entire operation. By a strange coincidence Rwanda was a member of the Security Council during the genocide, but—despite the fact that the government had requested the tribunal—it was the only member of the council to vote against the November 1994 resolution.

Rwanda’s initial opposition was driven not by the international character of the tribunal—after all, the Rwandan government had requested it—but rather by its view that the tribunal had an insufficient number of prosecutors and judges and should have been given the authority to impose the death penalty. Over time Rwanda became increasingly disenchanted with the UN tribunal, particularly with the physical and psychological distance that separates the trials from Rwanda itself. In August 1996, Rwanda passed legislation allowing its national courts to try persons responsible for the genocide but confined itself to persons not within the ambit of the international tribunal. A supplementary national system thus emerged. Recently, the chief prosecutor of Rwanda requested that the international tribunal transfer one case to the Rwanda national courts, with assurances that the trial would be fair and that the death penalty would not be applied.

The Rwandan government has also expressed frustration with the slow pace of the Arusha proceedings; as of this writing, only 28 persons have been convicted by the international court and five acquitted. But Rwanda’s national court system has itself been overwhelmed. By 2001, five years after the national prosecutions began, 85,000 persons—and as many as 120,000—were reputed to be languishing in Rwandan jails, awaiting trial. To help break the enormous backlog the government opened a traditional lay-judge system, or gacaca. Although the gacaca courts do not have jurisdiction over the most serious crimes, such as organizing the genocide, they do cover crimes such as murder. Many have criticized their procedures, which, for example, do not contemplate counsel for the accused. A New York Times editorial called these procedural shortcomings “alarming.” Others have wondered whether these folk proceedings are more concerned with reconciliation and mediation than with justice. Although a gacaca court is authorized to impose a sentence as severe as 30 years’ imprisonment, the sentence actually imposed will be significantly less if the accused confesses to the crime and seeks forgiveness from the family of the victims.

Sierra Leone also turned to the UN for help after its recent civil war. The result was an agreement first signed in January 2002 by President Ahmad Tejan Kabbah and UN Secretary General Kofi Annan and soon ratified by the Security Council, establishing the Special Court for Sierra Leone. This tribunal is charged with trying those responsible for crimes against humanity and war crimes that occurred during the conflict. So far it has indicted 13 persons for numerous human rights offenses, including the use of child soldiers and the deliberate maiming and amputation of civilians.

Perhaps the most prominent defendant before the Special Court is former Liberian president Charles Taylor, who was charged with backing rebel forces in Sierra Leone and orchestrating many of their crimes. Following a civil war in his own country, Taylor was ousted from power in 2003, at which time he was indicted by the Special Court for Sierra Leone and a warrant was issued for his arrest. That warrant remained unexecuted for a three-year period, during which Taylor lived in Nigeria under a grant of asylum. In March 2006, Taylor was arrested by Nigerian officials and returned to Liberia, which chose not to prosecute him for his crimes in Liberia. (After its civil war, Liberia had opted for a truth and reconciliation process.) Liberia then turned Taylor over to the Special Court for Sierra Leone. Acting at the request of the presidents of Sierra Leone and Liberia, who feared that trying him in Sierra Leone would provoke new outbursts of violence in the region, the Special Court moved Taylor’s trial to the Hague (in a room rented from the ICC). His trial began in June 2007. At the same time—five years after it was first established—the Special Court for Sierra Leone, sitting in Freetown, handed down its first verdict against three local leaders of rebel forces for war crimes, most notably for forcibly conscripting children, but also for terrorism, rape, and murder.

The Sierra Leone tribunal is often described as a “hybrid court” because its judges are appointed by both Sierra Leone and the UN. Yet national judges on the court are in the minority and the UN secretary general appoints the chief prosecutor. The first prosecutor was former Pentagon official David Crane, who established the overall prosecutorial policies for the tribunal. The second was an English barrister, Desmond de Silva, who had served as Crane’s deputy. The current chief prosecutor is Stephen Rapp, a former US attorney in Iowa, who had, prior to this appointment, served as chief prosecutor for the Rwanda tribunal. The Sierra Leone tribunal is funded by voluntary contributions from other nations, now and then supplemented by subventions from the UN General Assembly. The international character of the tribunal was further highlighted not only by the decision to try Taylor in the Hague, but also by the earlier decision—highly contested in Sierra Leone—to indict a local chief, Sam Hinga Norman. He had served during the civil war as Sierra Leone’s minister of defense and was celebrated by his countrymen for his actions against the rebel forces. On February 22, 2007, following his trial but before judgment, Chief Norman died while undergoing medical treatment in Senegal.

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Turning to international tribunals to render justice is, in some cases, a necessity. In Sudan, for example, high officials in the current government are the ones being charged with human rights violations, and it is therefore unrealistic to rely on the national court system. The absence of a national adjudicatory alternative arguably justified such historical precedents as the Nuremberg tribunal and, more recently, the international tribunal for the former Yugoslavia. However, in the other African cases—Rwanda, Sierra Leone, the Congo, Uganda, and perhaps CAR—there was no such structural barrier to prosecution by national courts of the human rights violations. The crimes may have a global dimension—human rights, after all, are universal—yet national tribunals are capable of punishing persons for human rights violations under either ordinary criminal law or the same norms used by international tribunals.

In 1985, for example, leaders of the junta that ruled Argentina from 1976 to 1983 were convicted in Argentine courts under domestic criminal statutes for their roles in authorizing extrajudicial killings, torture, kidnapping, and other crimes. A decade earlier, in Greece, the leaders of another repressive military government known for brutal treatment of its subjects were convicted by a domestic tribunal for mutiny and high treason. The auxiliary national system of accountability that emerged in Rwanda in the years following the establishment of the UN tribunal may be of a similar import.

Pragmatic considerations, not structural necessities, may well have led some African nations to turn to international institutions. Justice requires not only a public judgment and the imposition of some form of punishment, but also that this judgment and punishment be the product of a fair trial, indeed countless trials. Fairness requires that these trials be held on a particularized basis, focusing on the individual or group of individuals responsible for a specific event or series of events. Courts must be staffed and lawyers appointed, parties must have the opportunity to gather and present evidence and to rebut contradictory evidence, and some system must be in place for reviewing the initial verdict. As a result, human rights trials require an enormous commitment of resources—time, energy, and money—that will be diverted from other pressing projects. It is estimated that the Rwanda tribunal has already spent more than $1 billion. The Sierra Leone tribunal spends about $35 million a year. The ICC will spend more than $120 million dollars in 2007 alone.

Human rights trials not only consume enormous resources; they also challenge the power of the regime, especially when the need arises to arrest suspects, compel witnesses to testify, and inflict punishment. Those who are prosecuted are likely to resist, and if, as is often the case, they were military commanders of either rebel or government forces, they may be able to call upon the loyalty of those they once led. Sometimes the perpetrators will have fled the country. Yet international tribunals often suffer from these same deficits of power—indeed, in some cases international tribunals may have even less power (to detain suspects, for example)—although effective resistance to their work does not put the authority of the ruling regime in question.

The pursuit of justice is a moral obligation. The practical burdens facing national tribunals may make them capable of realizing only partial justice, but that does not, as a moral matter, excuse or justify a regime’s failure to seek justice. Nor do these practical considerations justify the overwhelming tendency toward internationalization that now dominates the African continent. Justice is also a political obligation, for it defines the foundational commitments of a given regime. The willingness of a regime to punish human rights abuses reveals—to its own citizens and to all the world—its true character.

A regime’s commitment to human rights is all the more powerful when justice is sought in the face of great practical obstacles. The nation-state may, of course, seek ways of minimizing the costs. It could decide, for example, to prosecute only the most egregious abuses or only those at the highest levels of power. No nation has ever prosecuted every human rights crime that occurred in its past. A certain measure of selectivity is inevitable, though the nation-state should feel regret about choosing not to prosecute someone who has committed a war crime or crime against humanity. In order to lessen the burden, the nation-state may seek technical assistance or financial contributions from others, but never in a way that compromises its control of the process and thus its responsibility for the quality of justice achieved.

Admittedly, a national tribunal may become embroiled in local politics and thus be less capable of rendering justice than an international tribunal. For example, given the strength of Chief Norman’s supporters in Sierra Leone, his prosecution might never have taken place in the national court system, much as justice might have required it. But international tribunals can also fall subject to improper influences of both local and global origin. Many have criticized the international tribunal in Sierra Leone for its failure to indict President Kabbah even though he is alleged to be as guilty of human rights abuses as his one-time comrade in arms, Chief Norman. Of course, in some cases an international tribunal may be more likely to achieve justice, but delegating responsibility to such a tribunal qualifies the commitment of the nation-state to human rights and lessens the meaning of the trial that eventually takes place. Half a loaf is better than none, but it is still half a loaf.

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Today the ICC is the preeminent international tribunal for the prosecution of those responsible for human rights violations, and continues the tradition of internationalizing African justice, as represented by the Rwanda and Sierra Leone tribunals. Indeed, the ICC’s entire docket is devoted to Africa. The ICC can act on the referral of the UN Security Council or in response to a request by the government of the country in which an alleged violation has occurred, although in certain circumstances the prosecutor may initiate an investigation on his or her own. As a court of last resort, the ICC pursues cases only where it has determined that national courts are incapable or unwilling to prosecute crimes within their jurisdiction. Although the ICC has received requests from governments outside Africa, it has declined to take jurisdiction over any of them.

Furthermore, where the ICC has assumed jurisdiction, it is not always clear that national trials are not an option. Although the ICC’s prosecution of those responsible for the genocide occurring in Sudan is readily justified by the peculiar structural features of that case, no such justification exists in the other cases—the Congo, Uganda, and now CAR. Human rights violations are being prosecuted, but not by the nations whose citizens have been abused. The failure represented by these cases belongs not only to the nation-states for leaving it to others—or getting others—to discharge their responsibilities, but also to the ICC for acceding to their requests.

In the case of CAR a change in regime led to the ICC’s involvement. The ICC investigation appears aimed at high state officials, but these officials were ousted in a military coup led by the current president. Thus, in contrast with Sudan, the incumbent government of CAR is fully capable of prosecuting those who allegedly committed human rights abuses. Although the current president and the highest court of CAR assured the ICC that the national justice system was unable to investigate and prosecute the alleged crimes, there is good reason to be skeptical of these assurances, given the practical and political advantages to the regime of turning the work over to the ICC. Leaving the matter to an international tribunal can insulate a regime from the political consequences of an unpopular prosecution or a travesty of justice, or provide it with a convenient method of dealing with opposition to the prosecution by relieving it of direct responsibility for it.

Granted, some of the leaders of the prior regime of CAR, most notably the ousted president, have fled the country. But that should not prevent the national courts from prosecuting those responsible for the human rights crimes who are within their jurisdiction or from seeking the return of those in exile, either through a formal extradition proceeding or as an act of comity, exemplified by Nigeria’s decision to return Charles Taylor to Liberia and Liberia’s decision to turn him over to the Special Court for Sierra Leone. Nor does the fact, emphasized by the ICC, that the armed forces of neighboring states may have come to the aid of the previous regime and participated in the atrocities justify the assertion of jurisdiction over the former CAR officials. All it justifies is an international prosecution of CAR’s interloping neighbors.

In the cases of the Congo and Uganda, where there has been no regime change and the wrongs are unconnected to state policy, the assertion of international jurisdiction is even more questionable. Here, the ICC is charging rebel leaders, pure and simple, with human rights abuses (such as forcibly inducting children into their militias). This aspect of the Congo and Uganda prosecutions raises a basic issue about the scope of international human rights law, namely whether it applies to actions not sponsored by, or in some way connected to, the nation-state and its policies.

Specific treaties can place duties on private individuals and groups, and in fact the Genocide Convention of 1948 explicitly disavows��any state-action requirement. The Rome Statute is not of this character, however, and instead generically proscribes “war crimes” and “crimes against humanity.” These crimes probably could, as a purely formal matter, be committed by private individuals or groups, but as legal ideas they were forged in a historical context in which the perpetrators were state actors, and gained their persuasive power from this context. As a result, in internation national human rights law today, the paradigmatic perpetrator is the state. Indeed, it was not until the June 2007 verdict by the Special Court for Sierra Leone that an international tribunal ever held rebel leaders responsible for human rights crimes, and notably for forcibly conscripting children. The reluctance to extend human rights law in such a way stems not from an indifference to the atrocities committed by rebel leaders—sometimes truly horrendous—but rather should be seen as an effort to demarcate the proper bounds of international tribunals.

In the throes of an armed rebellion, the physical capacity of a nation-state to bring rebel leaders to justice for their crimes is limited. But as is evident in the case of Uganda and the ICC’s still unsuccessful pursuit of the leaders of the Lord’s Resistance Army, in such situations the physical power of the ICC is also limited—it has no army. Once the rebellion is suppressed, however, the nation-state can reasonably be expected to prosecute those who committed atrocities in the course of their rebellion. The wrongdoers are within reach of the state, and their action should be seen as an offense to the nation itself. Not every atrocity calls for an international court.