Justice for all

A recent New York Times article describes the world of comfort - and perhaps even luxury - that war criminals are provided with at The Hague, Netherlands.

I don’t have a gym, a personal trainer, or a spiritual room in my tiny bedroom. On my (soon to be) non-profit salary, I certainly won’t be able to afford a visit to the Netherlands anytime in the near future. However, former warlords and human rights violators are getting all these amenities and more. Here’s a picture from the article of one of the “detention” cells in the International Criminal Tribunal for the former Yugoslavia (ICTY). It looks to be about the same size as the room I currently live in, and it’s much better furnished.

The dorm and apartment-style living quarters provided to war criminals - such as Thomas Lubanga and Charles Taylor - who are being tried at the ICTY, the Special Court for Sierra Leone (SCSL) and the International Criminal Court (ICC) are downright luxurious, particularly compared to the poor living conditions suffered by the general population in the countries they come from (Sierra Leone and the DRC, for instance).

Perhaps worse, these individuals, who often own numerous properties and large sums of money hidden away in offshore accounts, are receiving free legal aid from the ICC which costs a minimum of €35,000 per month. And the most unsettling part of the story is that family members from Sierra Leone and the DRC receive travel subsidies to visit their detained relatives in the Hague. While I wholeheartedly believe that even warlords and human rights abusers should have the right to a fair trial and continue to enjoy their basic human rights, I too feel that these perks go too far.

Look at the living conditions in Sierra Leone, literally one of the poorest countries on the planet. Look at the quality of justice in many African countries, where individuals who are imprisoned for crimes like robbery, homosexuality, or even witchcraft are essentially sentenced to death simply because the conditions in prisons are so wretched. Where prisoners live in overcrowded rooms and own only one pair of clothing. Where sanitation is poor and diseases like HIV/AIDS and tuberculosis are prevalent. Where they receive perhaps one meal a day, a corn mush which completely lacks in any nutritional value. Where individuals can be held on remand - without even going to trial and being convicted - in similarly horrible conditions for years with no hope of ever seeing a lawyer.

I’m not saying that warlords don’t deserve fair trials, but that they shouldn’t be living in the lap of luxury when millions of people in the very countries they have terrorized are living in far more devastating poverty and suffering from horrible prison conditions.

It’s a shame that perpetrators of genocide, war crimes, and crimes against humanity can play foosball, watch television, browse the internet whenever they prefer, and even enjoy conjugal visits with their wives — but that an individual who steals a piece of bread in the DRC might just die alone in prison of tuberculosis.

Where is the justice in this?

From Jurist:

Indonesia’s justice minister announced Tuesday the opening of a prison wing intended to confine individuals convicted of corruption….The wing was added to alleviate overcrowding in the Indonesian prison system and was also in response to criticism that wealthy prisoners are permitted to live in luxury. Anti-corruption reform has been one of the primary concerns of President Susilo Bambang Yudhoyono, and the opening of the prison wing highlights corruption concerns in the civilian and military branches of the government.

I think this is a great example of how the law can be used to fight corruption and white-collar crime. In a book I’ve been reading, called “The Rich Get Richer, the Poor Get Prison,” the author, Jeffrey Reiman, argues fervently that poor people are disproportionately locked up for crimes like nonviolent drug offenses, while the rich who engage in corruption and white collar crime - which often costs individuals, companies, and governments millions if not billions of dollars - often get off with far less severe sentences because they have access to high-quality counsel. Even if you compare a violent crime against one individual to a corporate crime such as corruption or embezzlement, the corporate crime often causes far more widespread economic damage.

White-collar criminals should be subject to the same laws and penalties because corruption is a serious crime that adversely affects individuals and economies. Yet, we as a society tend to consider violent crime by poor people to be far more threatening than economic crimes. White-collar crimes committed by the wealthy are often looked upon as far less severe. These conceptions have to change if the criminal justice system is to be more fair and equitable around the world.

That’s why I think Indonesia’s focus on treating white-collar and wealthy offenders the same as poorer individuals who commit crimes is commendable. Disparities in sentencing due to socioeconomic status are not only unjust and unfair, but also fail to deter crimes in an effective manner; such disparities need to be seriously addressed, and reforms like this are a good step towards justice sector reform.

Thanks to Running Chicken, I found an excellent new article by Hunjoon Kim and Kathryn Sikkink: Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries. The article basically concludes that:

We find that human rights prosecutions after transition lead to improvements in human rights protection, and that human rights prosecutions have a deterrence impact beyond the confines of the single country. We also explore the mechanisms through which prosecutions lead to improvements in human rights. We argue that impact of prosecutions is the result of both normative pressures and material punishment and provide support for this argument with a comparison of the impact of prosecutions and truth commissions, which do not involve material punishment.

If the article’s findings are correct and the statistical methodology is sound, then this is a great finding and can really help international justice move forward more confidently in the future. I am especially impressed by the finding that the normative impact of prosecutions has actually resulted in deterrence, since many have argued that international justice has not been communicated well on the ground, thus resulting in little impact on deterrence. More quantitative studies should be done on this particular question to further confirm these conclusions.

One of the questions that I had when I first read this was whether there would be a difference between post-conflict transitional justice and justice during conflict - such as the intervention of the ICC. Certainly, post-conflict transitional justice is often undertaken by regimes that are willing to prosecute members of a previous regime, and it would be understandable for those countries to ultimately have a better human rights record. However, the same cannot be said for international bodies undertaking prosecutions during a conflict, as indicted war criminals could simply exacerbate repression and continue to flout international law.

However, they addressed these questions as well, finding that prosecutions under civil wars do not have a different impact on repression than those in peace; indeed, prosecutions during civil wars may even lead to greater improvements on human rights records than prosecutions during peacetime. This is an incredible and truly groundbreaking finding, because it has applied statistical methods to the peace v. justice argument that has thus far been based on mostly qualitative case studies.

Indeed, I do think that many people are coming to the conclusion that the peace versus justice is a false dichotomy. While there was at first much backlash regarding cases in Uganda and Sudan, ultimately those who are indicted are responsible for massive human rights violations; while “peace” might depend on them temporarily, it would probably be best in the long-run if those responsible are simply taken out of the picture. I think the question now shouldn’t be whether we should wait to indict a war criminal or not, but should be about the enforcement of these arrest warrants. Faster and more efficient ways of apprehending war criminals would not only contribute to the deterrence effect, but it would also reduce the possibility of an indicted perpetrator continuing to wield power and exacerbate conflict at home.  Certainly, the challenges are numerous — but I really do think the next step should be to innovate better ways to arrest war criminals and gain international cooperation for their work, rather than to continue the debates about peace versus justice.

Recently, I wrote a post about the injustice of international justice – that war criminals are given decent living conditions and fair trials, while more petty criminals are denied the same. I ran across a very related argument in an excellent article: After Arusha: Gacaca Justice in Post-Genocide Rwanda by Alana Tiemessen. Here it is:

Local prisoner support for the ICTR is very low. The U.S.-based Internews Network has shown what are known as the “Arusha Tapes” in Rwandan prisons to give genocide suspects a view of what has been happening in the ICTR trials and to encourage debate on Rwanda’s own judicial process. Ironically, while the tapes are meant to generate support for the tribunal, they have had opposite effect on local prisoners. The reactions to the tapes have revealed concerns among the prisoners over the absence of the death penalty at the tribunal and the luxurious living conditions of the tribunal prisoners as compared to those of the Rwandan prisons. The issue of the death penalty is significant because it is used by the national courts in Rwanda but not at the international tribunal. One prisoner replied, “why is it that the tribunal gives them more lenient sentences than us, they are the ones who told us to kill on radio . . . how come we are paying the higher price?”

The objections and shock registered by the prisoners to the Arusha Tapes were reflected in their support of the Gacaca process as an appropriate and fair judicial process. Awareness and acceptance of the community courts is evidenced by the high and increasing number of confessions among the prisoners, numbering in the tens of thousands, and a willingness to provide testimony and evidence against other genocide suspects. (p. 62)

The above quote really highlights how those who are most responsible are often given luxurious situations in comparison to the rest of the perpetrators. However, the truth is that national justice sectors - especially in Rwanda - are simply not well equipped to try thousands of genocidiares in a relatively short time period. That is why more funding and assistance is necessary to immediately begin building up national justice sectors as well. If all the funding and attention goes to international tribunals, then national justice systems do not develop simultaneously as most people seem to hope - but simply continue to be underdeveloped and lack the resources needed to try massive numbers of perpetrators.

That’s why, in Rwanda, Gacaca seems to offer a promising alternative which requires much less funding since it is based at the community-level. However, Gacaca suffers from it’s own problems - most dangerously that it is fueled by the same ethnic tensions that resulted in the genocide, lacks due process and does not always provide ‘fair’ trials to the accused, and can result in another form of “victor’s justice.” This isn’t necessarily the most promising route to take in the long run, and the international community shouldn’t forget about national justice sectors while looking at alternative mechanisms like Gacaca.

Still, the idea of communities trying those responsible for the genocide and then reintegrating the perpetrators into their societies is indeed powerful - and can seem a more fair alternative to allowing perpetrators to languish indefinitely in national prisons. It is certainly a step forward, but is by no means a panacea.

Also, happy new year to all!

Charles Taylor Trial (Credit: BBC)

I just ran across this fascinating Time interview with Stephen Rapp, who was previously chief prosecutor for the Special Court for Sierra Leone (H/T Shelby Grossman). Rapp states:

The concern all of us had was that we were conducting justice in a comfortable courtroom with long trials and well-paid attorneys. Prisoners had single cells, and they had committed the worst crimes. A mile away in the local prison there were simply no resources. Cases can’t go forward, witnesses are lost, and people stay in detention for many years at a stretch. [If I was] to do it over, I would try to develop a court within the national system. That would be my preference. Maybe not a court that costs $30 million a year like the Special Court, but an appropriate court.

This is something I thought about while writing the post “Villains & Supervillains,” after my trip to The Hague with the ICC Student Network last year, but never fully articulated.

I understand that many of these “supervillians” - war criminals, genocidaires, leaders who have led crimes against humanity, are some of the worst perpetrators in that world. For that reason, they receive special attention, and they are given fair trials and adequate living conditions. They are allowed to represent themselves in court, and a great deal of attention is paid to their trials to ensure they are truly fair. This all makes complete sense, because their trials are, and should be, high profile and well publicized in order to draw attention to their horrific crimes and resulting punishments, and thereby contribute to ending the atmosphere of impunity worldwide. Without fair trials and without widespread publicity of these proceedings, there is no chance that the justice being done will deter future perpetrators (though the possibility of deterrence itself is arguable).

But the greater travesty and grosser injustice is the fact that we are pumping millions of dollars into international courts which have doubtful impacts, and are simultaneously completely ignoring the life-threatening conditions in the national justice systems of many developing countries. Isn’t this ironic? While war criminals are getting the royal treatment, everyday people - many of them poor - are arbitrarily detained in various African countries, often for stealing a piece of bread or for political reasons. In many African countries, torture continues to be widespread as an interrogative tool despite laws in the books prohibiting it.

In the Democratic Republic of Congo (DRC), 80% of prisoners are in pre-trial detention, and there is no law criminalizing torture. In Kenya, even petty offenders must wait an average of 5 years to have their case heard. In Kampala, Uganda, many prisons are overcrowded, often at 300% of capacity. And in Nigeria, women are held alongside men in prison, often leading to rape and sexual violence. In Zimbabwe, news reports have shown emaciated inmates starving to death from lack of food, often forced to catch and eat rats to survive.

The criminal justice systems of many developing countries are in far worse conditions than that of the U.S., and are arbitrary, unfair, and life-threatening. If the international community devoted one-tenth of the attention to this issue as they do to providing fair trials to supervillains, then many more innocent lives would be saved.

As the status quo stands, a guy who is responsible for the genocide of thousands gets a lawyer of his own and a fair trial, while the poor, innocent, arbitrarily detained are tortured and starve to death without ever having access to counsel. Is this fair, or just? I don’t think so. This doesn’t mean we should pay less attention to war criminals, but that we should work harder to ensure a fair trial to those who are not.