Peace & Justice
A Courting We Will Go
Published November 20, 2009 @ 08:14AM PT
The Genocide Convention was nearing completion. The crime, the punishable acts, and the perpetrators had all been defined. It was now necessary to establish the entity responsible for prosecuting the crime.
In drafting the articles pertaining to prosecution and jurisdiction the triumvirate of experts took a rather expansive and radical approach. Article VII of the Secretariat draft recognizes universal jurisdiction by requiring states to "punish any offender under this Convention within any territory under their jurisdiction, irrespective of the nationality of the offender or of the place where the offence has been committed." This would mean that states are responsible for prosecuting perpetrators of genocide regardless of where the crime took place or the nationally of the perpetrator.
Article IX committed states to hand over all persons guilty of genocide to an unspecified international court in cases where the state was unwilling to try offenders or if the state had supported the commission of genocide. However it should be noted that Lemkin opposed the inclusion of the first clause. He argued that such cases were of lesser importance. He, rather presciently, voiced his concern about offenders escaping punishment because of the complex process involved in turning over guilty parties to an international court. Article X was submitted in two drafts. The first gave the International Court of Justice criminal jurisdiction in all matters connected with international crimes. The second provided than an international court be set up to try the crimes of genocide. Lemkin spoke out against an international court, warning that such an action might be premature.
A Case of Liable
Published November 06, 2009 @ 02:44PM PT
So far the drafters of the Genocide Convention had established a definition and punishable acts. The next step was to clearly establish who could be held liable for genocide.
The Secretariat draft placed criminal liability for genocide on "rulers, public officials, and private individuals." In their commentary the experts stressed that the greatest responsibility for genocide prevention lies with rulers or statesmen. They also took the position that international law should concern itself with prosecuting "rulers" and that states should be in charge of prosecuting lesser public officials.
In a nod to the famed "Nuremberg defense" the Secretariat draft also prohibited "command of law or superior orders" as a justification of genocide. However, it did acknowledge that in some cases command of law or superior orders may constitute extenuating circumstances. This question would be left to the judge.
The Ad Hoc Committee unanimously voted to impose criminal liability on "heads of State, public officials or private individuals." Interestingly a Soviet proposal to include a prohibition of the Nuremberg defense was rejected. Other committee members explained that an in accordance with the definition of genocide an individual could not be held liable unless they possessed the requisite intent and orders were not sufficient to meet this requirement.
Human Rights in Eric Posner's Lawless World
Published October 26, 2009 @ 09:00AM PT
Conservative legal provocateur Eric Posner has an article titled "Think Again: International Law" in the most recent Foreign Policy. If you are involved in human rights work, it won't make you happy.
Posner writes:
"Academic research suggests that international human rights treaties have had little or no impact on the actual practices of states. The Genocide Convention has not prevented genocides; the Torture Convention has not stopped torture. The same can be said for the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and a host of treaties meant to advance the rights of women and children. States that already respect human rights join human rights treaties because doing so is costless for them. States that do not respect human rights simply ignore their treaty obligations."
What is Posner's argument here? That laws that aren't followed 100 percent of the time should be disposed of? That genocide and torture shouldn't be illegal? If that is, in fact, what Posner is saying, his complaint isn't with international law, but law in general. After all, murder is illegal in every society, yet murders are still committed everywhere.
Posner goes on to explain:
"The evidence shows that human rights are best in those states that are wealthiest, leading many scholars to speculate that the best way to promote human rights is to promote growth."
Wealthier states are, on average, more likely to respect human rights, but Posner is assuming that economic growth causes states to respect human rights. There is a huge body of literature, including, most famously, Amartya Sen's Development as Freedom, that concludes the exact opposite, that respect for human rights -especially freedom of expression- enables disaster-prevention, poverty reduction, and economic growth.
Then, there are the glaring examples of developed and wealthy countries showing little respect for the rights of people residing within their borders. Russia, Saudi Arabia, the United Arab Emirates, and Singapore might all be developed, but they're hardly paragons of good human rights policy. Economies can boom and skylines soar on the labor of exploited, brutalized underclasses, and in spite of authoritarian denials of civil and political rights.
However, countries like Singapore, representing the so-called "authoritarian development" model, and rentier states like Saudi Arabia -regimes that survive on income from natural resources- are exceptions globally. Most undemocratic countries are dismally poor.
As law, human rights have instrumental value to people campaigning for equality, exposing cruelty, and taking cases against their abusive and feckless governments to national and international courts.
A Conventional Approach
Published September 23, 2009 @ 04:26PM PT
On the eve of a new UN General Assembly it may be helpful to look back on the history of one of the body's most substantial contributions to international law.
The idea of an international treaty prohibiting genocide was first broached by Raphael Lemkin, the Polish lawyer who created the term "genocide." In a pamphlet published in 1946 Lemkin proposed that individuals who committed acts of genocide would be prosecuted by the country where the crime was committed. Additionally, he suggested that a special tribunal be set up to try any government or organization leaders who participated in genocide.
A Few Good Extraditions
Published September 20, 2009 @ 05:56PM PT
A brief check-in on the slowly-but-surely turning wheels of post-genocide justice:
In another round of "well if you won't, we will," the world renowned, universal jurisdiction-lovin' Spanish judicial system indicted a Michigan resident on charges of accessory to genocide. Judge Ismael Moreno issued an arrest warrant for Johann Leprich, who is believed to have worked as a guard at the Nazi's Mauthausen concentration camp.
Leprich was stripped of his American citizenship in 1987 when his Nazi past was revealed, and he eluded arrest and deportation for another 16 years. Once caught, though, he was released back into the wilds of the Detroit suburbs (albeit, with an ankle bracelet) when no other country would take him, due to a US Supreme Court ruling placing a six month limit on detention for those awaiting deportation.
I can only hope that someone is working to close the legal loophole with an "except if you're an accused war criminal" clause -- but in the meantime, it looks like the Spaniards have our backs.
Human Rights at Risk in Serbia
Published September 14, 2009 @ 03:27PM PT
Impunity begets impunity, it seems.
A new report from Amnesty International accuses the Serbian government of turning a blind eye to attacks against human rights defenders, whose primary ‘offense' is calling for accountability for war crimes committed by Serbian forces in the 1990s. Hostile pro-government media singles out human rights defenders, with particularly vicious attacks reserved for women and LGBT activists, and accuses them of driving the country to ruin with their calls for justice. A journalist in Belgade was the victim of a grenade attack on his apartment after appearing on local television to discuss the 1995 genocidal massacre at Srebrenica.
Using the media to express an opinion is one thing -- but threatening the lynching of a human rights activist crosses any reasonable line of free speech, especially in a still-tense post-conflict setting. Publishing the home address of another and labeling her a "traitor" borders on criminal. According to activist Sonja Biserko of the Helsinki Committee, the state itself is "eager to silence people because they don't want us to remind them what they have done."
Justifying Justice in Cambodia
Published August 27, 2009 @ 10:27AM PT
The field of transitional justice has a knack for self-prescribing rather lofty expectations.
Drinking the kool-aid at post-atrocity trials and truth commissions involves adopting the jargon of reconciliation, dealing with the past, overcoming trauma, establishing rule of law, and so on. It's as if the field is so insecure that it feels the need to justify itself to itself, when, at the most basic level, the rationale for prosecuting a Nazi is no different than for any murder suspect.
This week, a psychiatrist testified at the trial of a Kaing Guek Eav, known as Duch, that the prosecution of former Cambodian genocidaires can help victims "overcome their trauma through justice."
The bold claim seems reasonable on an individual level, but is otherwise ultimately unsubstantiated. Precious little research has been able to capture a discernible impact of transitional justice proceedings across broad segments of society. A new study, funded by the U.S. National Institute of Health, will hopefully shed light on the impact of the genocide trials on the large number of Cambodians suffering from Post-Traumatic Stress Syndrome.
