The Ceaseless Search for Justice

Justice after atrocities is elusive. Despite a growing international consensus that torturers and the architects of genocide should stand trial for their crimes, prosecution is rare. For every Slobodan Milosevic and Charles Taylor—two of the more deserving defendants in modern history—there are a thousand Pol Pots and Idi Amins who escape justice. Today in Khartoum, Sudan’s leaders walk freely while Darfur’s surviving victims of crimes against humanity huddle in Chadian refugee camps, fearful of renewed janjaweed attacks.

The creation of the International Criminal Court in 1998 promised an end to the impunity too many mass murderers enjoy. Erna Paris’s highly accessible The Sun Climbs Slow: Justice in the Age of Imperial America joins a growing literature surrounding the development of international criminal law and the maddening quest to bring to trial those responsible for grave human rights abuses. The title, derived from the signal phrase in Arthur Hugh Clough’s poem “Say Not the Struggle Naught Availeth,” was quoted by Winston Churchill in its entirety in his radio address on April 27, 1941. Churchill, anxious to bring America into World War Two during the Battle of Britain, intoned Clough’s famous words:

When daylight comes, comes in the light;
In front the sun climbs slow, how slowly!
But westward, look, the land is bright!

Paris uses Clough’s words as a springboard to explore two themes: the sense of enlightenment and excitement surrounding the ICC and the “sad irony” of persistent U.S. opposition to the Court. Her first theme is more successful than her second, but each requires the other to complete the story.

Proponents of the ICC believe it is the most significant advancement in international human rights law in the last half-century. Certainly its birth, over strenuous U.S. objections, reflects a remarkable global consensus that individuals responsible for war crimes, genocide and crimes against humanity should face justice. The creation of a permanent criminal court at The Hague recalls the Nuremberg precedent and with it the promise to call war criminals to account for their actions. Paris connects to the yearning for institutionalized accountability better than most commentators. Her terrific earlier book Long Shadows: Truth, Lies and History examines the pain of repressed memory and the impossibility of forgetting atrocities. What unites South Africans who testified before the Truth and Reconciliation Commission with Chileans who doggedly pursued Augusto Pinochet and Charles Taylor’s Sierra Leonean victims is a longing to move private knowledge into the arena of public acknowledgement and to punish the worst perpetrators.

The best chapter of Paris’s latest work details her 2004 visit to Sarajevo and the reaction of residents of Srebrenica to the conviction of Momir Nikolic and Dragan Obrenovic at the International Criminal Tribunal for the Former Yugoslavia. Emir Suljagic, a Muslim survivor of Srebrenica, paints a textured picture of Nikolic for Paris that demonstrates the power and limits of international criminal justice. Nikolic zealously participated in the execution of thousands of men and boys from his own community. But he was not entirely a sadist; even at the height of the war in Bosnia, he acted humanely toward Suljagic on two occasions. Following his arrest, Nikolic pled guilty to committing genocide at Srebrenica. Unlike other defendants, Nikolic expressed remorse at his sentencing; for Suljagic, Nikolic’s admission represented a welcome break from the persistent denial of his Serbian neighbours. For Suljagic’s neighbours, Nikolic’s words were hollow. They did nothing to bridge the gulf between Bosnian Muslims and Serbs, particularly at a time when the majority of Muslim survivors of Srebrenica had not returned to their homes because “their houses had been destroyed or taken over by former neighbours.”

Paris is a gifted and folksy storyteller. She weaves personal narratives and rich descriptions into her chronicle of collective injuries. Although the details are occasionally distracting, Paris is convincing in her view that for many victims of atrocities, a permanent international criminal court expresses validation of their suffering and the opportunity to condemn those who bear the greatest responsibility for those crimes. That exercise, she argues, should rid communities of collective guilt and allow for the individuation of blame. Even if many victims and survivors feel that punishment is too little too late, there is powerful didactic value in affixing responsibility to particular war criminals. Just as the Srebrenica convictions at the ICTY contribute to an authoritative history of Nikolic’s and Obrenovic’s actions, the ICC holds the promise of assigning individual responsibility for war crimes while simultaneously offering an official account of widespread human rights abuses.

The exercise of selective retribution may also strengthen international criminal law as a whole. The ad hoc tribunals for Rwanda and the former Yugoslavia build on the Nuremberg trials and offer a modern account of crimes committed during armed conflict, including explicit recognition of rape as a crime against humanity and a weapon of war. These courts have been followed by the hybrid domestic/international law tribunals operating in Sierra Leone and East Timor, as well as the one lumbering to life in Cambodia. The Special Court for Sierra Leone, for example, has proved capable of adapting the canons of international criminal law to a specific conflict and has clarified the criminality of recruiting child soldiers, the capacity of an international court to prosecute even where there has been a domestic amnesty and the principle that heads of state do not enjoy automatic immunity. ((In the interest of full disclosure: I authored a submission to the Special Court for Sierra Leone with students of the University of Toronto Faculty of Law International Human Rights Clinic arguing for the criminality of recruiting child soldiers. )) The ICC’s first defendant, a Congolese warlord named Thomas Lubanga Dyilo, is charged with recruiting child soldiers, a war crime that builds on the achievements of the Special Court and was never imagined by the Nuremberg prosecutors.

But the needs of victims, historians and law professors failed to move U.S. officials during the run-up to the 1998 Rome conference when the ICC was formally created. The American position at Rome was shaped by the overarching concern that U.S. military personnel would be hauled before the court in politically motivated cases. Canada, by contrast, served as an enthusiastic midwife to the court and took a leadership role, forging agreement for an institution that takes cases that originate on the territory of a signatory states or involve perpetrators of signatory states or when the United Nations Security Council refers the matter. (The U.S. objects to the first of these bases because even as a non-signatory to the ICC, it is conceivable that an American who committed a war crime in a country that had joined the court could be tried at The Hague.) Much of the credit for the ICC belongs to two Canadians: Louise Arbour, who indicted Slobodan Milosevic during her time as chief prosecutor of the Yugoslav and Rwanda tribunals, thus proving that international criminal law was real, and Philippe Kirsch, the diplomat who chaired the meeting of nations that launched the ICC. ((The seminal account of Louise Arbour’s time as chief prosecutor is John Hagan’s Justice in the Balkans: Prosecuting War Crimes in the Hague Tribunal (Chicago: University of Chicago Press, 2003). )) Kirsch, for his part, navigated a path between small states wanting a strong court to prosecute a range of international crimes, including drug trafficking, and superpowers wary of a court that would prosecute peacekeepers. The result is an institution founded on the principle of complementarity, the idea that the ICC will prosecute only when the host state of the crime is unable or unwilling to do so.

Paris is plainly taken by the idea of the court, the fact of its existence and its impressive personnel. Her gauzy description of the ICC’s 2003 inauguration, complete with accounts of the string ensemble that played for dignitaries, speaks volumes about her admiration for the states that have joined this effort. Conversely, Paris’s disappointment at the absence of the United States is palpable.

For Paris, American intransigence on the ICC is an example of imperial overreach and a betrayal of the best American traditions, dating back to the Lieber Code of 1863, a field manual that aimed to influence the Union army during the U.S. civil war. In her introductory chapter, titled “Roots and Tendrils,” Paris recalls the struggle between power and principle in Thucydides’ History of the Peloponnesian War. In 416 BC, in the 15th year of war between Athens and Sparta, Thucydides describes the Athenian posture toward tiny Melos, an independent state that wishes to remain neutral in the Athens-Sparta conflict. Seeking to ward off invasion and occupation, the Melians appeal to the rule of law and universal justice. Athenian representatives reject their logic and enslave the inhabitants of Melos because, after all, the strong do what they can and the weak suffer what they must.

Should the U.S. join the ICC? Paris interviews a number of experts, including William Schabas, the Canadian director of the Irish Centre for Human Rights, Cherif Bassiouni, the law professor whose investigation set the stage for the ICTY, William Pace, the chair of a coalition of nongovernmental supporters of the court, and Luis Moreno-Ocampo, the Argentine chief prosecutor of the ICC—all of whom provide ample evidence that U.S. objections are wildly overstated. It is here that Paris’s strengths as a narrator undermine the gravitas of the text. The personal anecdotes, political motivations and career successes of her subjects give the court a human face but they obscure the point that the institutional checks of prosecutorial discretion, judicial review of investigations and the complementarity principle ensure that the chance of an American ever being tried at the ICC is miniscule. Still, the Pentagon is wary and none of the commentators seriously believes the last remaining superpower will become a party to the ICC.

It is America’s shift away from neutrality to active hostility toward the court that triggers Paris’s wrath. To explain the position, she seeks out John Bolton, the bête noire of the ICC and the former U.S. ambassador to the UN. He is the architect of the so-called Article 98 agreements through which the U.S. has negotiated bilateral arrangements with more than 100 states in which both countries agree never to send one another’s nationals to the ICC. Bolton also hijacked UN operations by tying continued U.S. participation in UN peacekeeping efforts to a yearly exemption from the mere possibility that an American soldier could be transferred to The Hague. Predictably, in Paris’s interview with Bolton, he defends American exceptionalism and insists that he answers only to the president and the constitution. In that, Bolton is all Athens, no Melos.

Paris could have concluded her book by observing that the U.S. is on the wrong side of history. The ICC is functioning, despite U.S. opposition, and has commenced investigations into crimes committed in Uganda, the Democratic Republic of Congo and, by Security Council referral, Darfur. And since 2005 the U.S. has been forced to concede that the ICC’s review of the actions of Sudan’s leaders is not only appropriate but is long overdue, and the U.S. has been unable to negotiate peacekeeping exemptions after the images of Abu Ghraib proved that sometimes Americans commit atrocities too.

But Paris goes further, polemically suggesting that U.S. opposition to the court is part and parcel of a world view that systematically disregards the rule of law and ultimately results in the Iraq war, torture, the extraordinary rendition of Maher Arar and the imprisonment of Omar Khadr at Guantanamo Bay. There are three problems with this conclusion. First, it implies that U.S. disregard for international law leads to Iraq. This may well be one causal factor but it explains too much. It is more accurate to say that the ICC is one among many casualties of the Bush administration’s decision to wage an open-ended war on terror and its rejection of all legal constraints. David Cole and Jules Lobel’s Less Safe, Less Free: Why America Is Losing the War on Terror offers a compelling argument that the Bush administration is an equal opportunity offender and that it has repudiated both U.S. constitutional standards and international humanitarian law to our collective detriment.

Second, Paris’s fixation on U.S. antagonism toward the ICC distracts from several of the court’s real problems. To begin, the ICC and its statute represent the codification of evolving norms but they do not define state-to-state aggression, terrorism, cybercrime or sex trafficking. The ICC’s failure to define terrorism as an international criminal law offence is particularly unfortunate. In the aftermath of September 11, 2001, Reed Brody of Human Rights Watch poignantly compared posters identifying the missing people of the World Trade Center in Lower Manhattan and the placards of the mothers of the disappeared in Argentina and elsewhere. A court that tries terrorists might offer instrumental value to U.S. officials who cannot see past their fear of Americans as defendants. But instead of operating as a court for criminal law, offences that exceed the capacity of any one state to address, the ICC focuses solely on war crimes, genocide and crimes against humanity.

Because the U.S. is not the only powerful non-party, the ICC is also powerless to address abuses arising from Russia, Israel, China, Iraq, India, Pakistan, Iran, Saudi Arabia and Indonesia. Insofar as this list includes present and future geopolitical powers, their absence from a court capable of trying individuals according to common standards erodes the notion of universal justice. The result is that the ICC concentrates on crimes committed in smaller states: its first cases are unfortunately drawn entirely from African states where there is civil conflict and the government is hoping the ICC will prosecute the rebels. In Northern Uganda, where the ICC has issued indictments for five members of the Lord’s Resistance Army but not for army or government officials, many locals and human rights advocates fear the court is taking sides while complicating efforts to achieve a negotiated settlement to the fighting.

Third, The Sun Climbs Slow exaggerates the power of post-atrocity prosecution. Criminal accountability, even when it occurs infrequently, can provide a testimonial forum for victims and contribute to the restoration of the rule of law. However, there is precious little evidence that it prevents crimes in the first place or deters future abuses. As Boston University law professor Robert Sloane observes, “international criminal law must be conceived not as a panacea but as one element of what should be a more comprehensive strategy to prevent and address the circumstances that give rise to serious human rights atrocities.” That is why Louise Arbour, Lloyd Axworthy and Michael Ignatieff consistently place the ICC in the context of global human security. After-the-fact prosecution, as the people of Darfur would undoubtedly agree, is no substitute for peacekeeping, early intervention and the protection of human rights before societies are torn apart.

None of these criticisms detracts from the ICC’s significance. It is an achievement worthy of Paris’s attention. In the end, though, The Sun Climbs Slow is the story of an institution and one that is unlikely to have the lasting impact of Long Shadows.