Wednesday, 15 August 2012

International Criminal Law – A Good Time to Reflect

Daniel Wand

Congolese warlord Thomas Lubanga during his trial for conscripting and enlisting children to be used in armed conflict. Evert-Jan Daniels/AP.
Criticising international criminal law has long been a favourite pastime for international legal academics and has provided a wealth of literature on the subject. This has however been arguably justifiable considering the patchy track record of international criminal law in delivering justice on an unrestricted international scale, the very reason for which it was conceived. 
Despite the continued developments and strengthening of international criminal system over the past sixty years, both institutionally and jurisprudentially, it is has remained plagued by various problems and deficiencies. Many of these are an unavoidable result of the deference to sovereignty that international criminal law must pay whilst others are ongoing teething problems associated with infancy of the hybrid legal system. This has resulted in a highly inconsistent success rate of capturing and prosecuting those individuals accused of some of most heinous crimes known to man.
There are two main criticisms of international criminal law which are regularly recited within the literature. The first is that international criminal law has failed to bring to justice the most senior state officials who fund, plan and orchestrate the commission of the most grievous international crimes. The second focuses on the fact that the long awaited and much trumpeted International Criminal Court had failed to bring a single conviction after almost ten years in existence.
These criticisms have however to some extent been mitigated by two recent developments – the conviction of Thomas Lubanga, a former Congolese warlord and Charles Taylor, ex-President of Liberia, in judgments delivered by the International Criminal Court (ICC) and Special Court for Sierra Leone (SCSL) on the 14 March 2012 and 26 April 2012 respectively. These are significant milestones in the ongoing development of international criminal law and prove to the international community that international criminal law and more especially the ICC regime is capable of bringing all individuals to justice and ending global impunity.
The Lubanga Judgment 
The conviction of Thomas Lubanga, the first for the ICC and delivered shortly before its 10th anniversary, is a momentous achievement and a major step forward for the Institution. The judgment proves to the international community and the ICC’s many critics, that it is an institution capable of delivering international justice despite the constraints imposed upon it and has gone a long way to alleviating the lingering fears about the ineffectiveness of the ICC.  
The judgment is also significant as it is the first to confirm the existence of criminal liability for using child soldiers in armed conflict. This practice is prominent throughout Africa and has been for centuries, but it is hoped that Lubanga’s conviction will mark the beginning of the end of this heinous practice, drawing the world’s attention to the issue and acting as a serious deterrent to those who seek to use children in war - as Radhika Coomaraswamy, the UN’s Special Representative for Children and Armed Conflict, stated ‘In this age of global media, today’s verdict will reach warlords and commanders across the world and serve as a strong deterrent’.

It must however be noted that despite its significance some strong criticism has been levied against the judgement. Firstly, it is considered to be very inaccessible. The judgment is almost 600 pages long and highly technocratic and it has therefore been criticised for failing to reach those directly affected by the crimes committed. The judgment is also criticised for being too safe and conservative. It was hoped that the first judgement would seize the opportunity to explore and clarify the nature of the offence of using child soldiers but it fails to do so, offering very little in the way of substance or legal creativity. 
The Charles Taylor Judgment 
The conviction of Charles Taylor was a truly significant moment in modern international criminal law as it was the first time since the Nuremberg Trials that a former head of state was tried and convicted for international crimes in an international criminal tribunal. This judgment proves that no one is above the law and therefore goes a considerable way to reducing the potency of the traditional criticism, that international criminal law is only capable of prosecuting more junior individuals and continues to allow the most senior government officials to live with perpetual impunity – as lead prosecutor Brenda Hollis stated This judgment reinforces the new reality, that heads of state will be held accountable for war person, not matter how powerful, will be above the law”. This judgment is also significant for Africa in particular, the continent having struggled to deal with very powerful leaders who have abused their power with horrendous and bloody consequences. 
The basis on which Taylor was convicted is also very significant and reflects a positive shift in international criminal law. The former Liberian president was convicted of aiding and abetting war crimes for his role in perpetuating the conflict in Sierra Leone. Taylor’s link to the crimes committed was significant but a physically detached one and this evidences the fact that international criminal law is beginning to move beyond merely focussing on prosecuting those individuals who directly and physically perpetrate crimes, as has traditionally been the case, and is now being more bold and dynamic in attributing criminal liability to more senior individuals who do not have blood on their hands but without whose leadership and influence the crimes would not occur.  These individuals are arguably the most culpable and it is right and just that they are now being brought to justice.  
Once again however the judgment has not been without criticism. It has been suggested that conducting the trial at The Hague, thousands of miles away from where the atrocities occurred, and not on West Africa soil ‘took away an aspect of the peoples’ ownership of the trial and detracted from the positive ongoing move toward African solutions to African problems, of which the SCSL was emblematic.
What does this mean for the future of International Criminal Law?
The judgments in the Lubanga and Charles Taylor cases are both very important moments in the development of international criminal law and ones whose significance should not be underestimated. Despite both judgments having notable drawbacks their impact on the ongoing development of international criminal law, in terms of its jurisprudential substance and its reputation on the international stage are unquestionable and will undoubtedly contribute to the ongoing development of a greater and more effective international criminal system. 
These judgments however mark only the start of what appears to be a much brighter and more fruitful future for international criminal law. The International Criminal Court is close to delivering its second judgment in the case of Katanga and Chui and has now got its second prosecutor. Radovan Karadzic, a former Bosnian Serb leader, is currently on trial for war crimes and crimes against humanity at the International Criminal Tribunal for the Former Yugoslavia and Bernard Munyagishari, a former Rwandan militia leader, is currently on trial at the International Criminal Tribunal for Rwanda charged with genocide.
It is hoped that these cases will set a new standard in international criminal law, ensuring that no man is above the law and that those individuals who plan, organise and orchestrate the most heinous of international crimes, wherever they are committed, are no longer allowed to live in absolute impunity and are brought to justice in front of the world.

Saturday, 11 August 2012

Who Will Stop the Drones?

Sam Storr

B66 1966 - Unchecked, drone warfare harks back to the excesses of the kill-by-numbers approach resorted to in Vietnam. US Federal Government archive.
The so-called drone wars, began by George Bush and accelerated under Barack Obama, represent nothing less than a totally illegal campaign of systematic, often indiscriminate and senseless murder. It is of vital importance to say this each and every time the topic of the drones is raised, for it is not even secrecy that allows the drones to fly so freely.

Although the existence of CIA bombing campaigns cannot be officially admitted due to 'national security reasons', the Obama administration has had no qualms about publicly referencing it. Indeed, recent Defence Department leaks have made Obama seem indecently proud of his personal involvement in the alleged secret US 'kill list', raising the frightening possibility that innocents across the world will feel the weight of the President's electoral ambitions in high explosives. The US government still makes little information available, but journalists, activists, and NGOs are doing much to fill the gap.

Rather, the US exploits the superficially extra-legal territory that its drone use occupies. The official US silence on the matter is more likely intended to thwart legal attention rather than directly protect national security. Positive statements about the legality of drone operations are coupled with a policy of studied, callous indifference to the facts of what it does.

For example, the Department of Defence clings doggedly to the position that very few civilians are killed in drone operations. This is in dispute of evidence from a variety of sources, such as the Bureau of Investigative Journalism, which are certain that large numbers of innocent civilians have in fact perished. The fact of the matter is that the US makes no attempt to gather the intelligence that might justify their statements.

At times, information supplied by local partners is used to identify specific militants. The reason for drones being used though, is usually because these partners are less-than perfect. As such, this has been criticised for allowing informants to use US drone capabilities as a utility to pursue their own interests, for example by removing a rival.

If this were not enough, many attacks are made on a more spurious basis: the 'signature strike'. This is the method used when the military or CIA wants to kill someone, but has nobody specific in mind. A target can be identified by whether the pattern of their movements fits that of an imagined militant. By the time the 'kill zone' is identified, everybody of militant age is an assumed combatant, and the military does not feel obligated to ascertain whether this was really the case. With such a targeting procedure, the technical precision of the strike is immaterial.

The target of every drone attack is therefore by definition a militant; the more targets that are destroyed, the more successful seems the campaign, and the desire for more blood only grows. This is also in direct contravention of international humanitarian law, which dictates that all reasonable attempts must be made to ensure that civilians do not become military targets. To do this, of course, would make the widespread use of drones impractical.

However, most drone strikes take place in countries where the US is not at war, is not acting in self defence, and has not been authorised by the Security council to act. For the analyst Jeremy Hammond, this makes drone strikes 'incontrovertibly illegal' under Article 2 of the UN convention. Yet this reading is insufficient, as the response to terrorist attacks from unstable states is clearly not something accounted for by the authors of Article 2.

International law has thus far failed to respond to the American challenge, which has been to brazenly distort international legal principles in its favour, whilst making no attempt to recreate a stable, robust and whole international system. This is why UN Rapporteur Christof Heynes is claiming that drone use threatens fifty years of international law.

Therefore the Bush administration considered terrorist acts such as September 11 to be acts of war rather than of criminality, thus unlinking warfare from the concept of states and of international mediation, undermining the entire basis of the international legal system governing conflict. This is essential, as peacetime assassination is banned, as is the use of the weapons carried by drones in law enforcement operations; in war, the threshold for the use of extreme force is lowered, though not previously to the level at which the drone wars operate.

Missiles are aimed not at states, but at poorly-defined 'illegitimate belligerents', to whom precious few legal obligations are owed, especially when they lie dead in a far-off land rather than being an unsightly presence in a Cuban prison.

From Bush through to Obama, the meaning of the terms 'civilian', and 'militant' have also been altered, and the concept of the 'pre-emptive strike' has been strengthened. Although the Obama administration's dropping of the phrase 'War on Terror' seemed a positive development at the time, it now reads as a signal that it could care less about the meaning of what it does.

As Medea Benjamin points out in Drone Warfare, the idea of allowing a place such as Yemen to be bombed on these terms is equally as mad as allowing Hellfire missiles to be directed at uptown Hamburg, London, or New York.

This practice of redefining legal boundaries is of course completely illegitimate. Legal scholar David Glazier argues that most in his profession concur that drone pilots are not technically combatants, and therefore should face no protection from prosecution in the countries upon which they unleash their missiles. Additionally, the CIA, a civilian agency, is wrongfully in charge of many of these attacks.

Above all then, the drone wars rest on the inability of international legal bodies to innovate and to challenge power. Hence the importance of the opening statement; it is caution and complacency that allows the international system to be so badly abused. The beginnings of a high level UN investigation are only just forming, with the UN Special Rapporteur on Extrajudicial killings proffering his belief that war crimes may have been committed. 

Thankfully, despite the seemingly unstoppable momentum of the drone campaign and the associated military hardware industries, this blissful period in which the US military can rain down destruction on the 'others' at will, as it has long dreamed of doing, does have an air of impermanence.

The international community soon begin to realise its direct self-interest in taming the beast, as drone technology becomes more widely available to other rogue states, criminal groups, and terrorists. As the August cover of US Wired magazine so thoughtlessly put it: 'Why should the military have all the cool stuff?'. Israel is also regularly using drones in Palestine. Hezbollah has already flown several Iranian-made surveillance drones over Israel, and has even on occasion attempted to fly in weaponised versions. The possibility of a domestic terrorist drone attack is no doubt the topic of frantic discussion at the Pentagon, as the use of commercial drones spreads.

The legal basis for evaluating drone tactics requires not just research, but hard legal precedent. As international law remains far too selective in its prosecution, unable to challenge the powerful, a system may be built as the monopoly of the skies slips from America's hands.