The Duck of Minerva

A Nuremberg for Guantanamo?

21 August 2009

GUÉNAËL METTRAUX, a international criminal defense attorney in the Hague, published a modest proposal regarding the Guantanamo detainees in today’s New York Times: instead of trying the detainees in military commissions or US courts, set up an international tribunal under UN auspices:

Trying these men stateside would necessarily require the compromise of long-cherished principles of American law. Yet continuing to hold them without the prospect of a fair trial or delivering them to undemocratic governments are alternatives not worthy of the Obama administration or of the United States.

America’s own endeavors at Nuremberg offer a way out of this impasse: an international tribunal for detainees. Such a tribunal would allow the Obama administration to finally try these individuals and close down Guantánamo — and it would bring the nation back within the tradition of law and justice that it so forcefully defended six decades ago.

We need not look as far back as Nuremberg. Recent international tribunals for Sierra Leone, Cambodia and Yugoslavia have provided fair trials in challenging political environments to men and women accused of the gravest of crimes. In The Hague right now, an international criminal tribunal is looking into the terrorist attacks that shook Lebanon in 2004 and 2005. This tribunal — created by the United Nations Security Council at the initiative of the United States, among others — provides a ready model of a court capable of dealing with the detainees.

But it does actually matter whether he is talking about a Nuremberg or a hybrid international court similar to those previously set up under the UN. For example, only by confusing the two would he seem so confident an international tribunal would be less, rather than more constrained than US courts on grounds of due process. Historically speaking, late 20th century tribunals have had higher legal standards than domestic courts, and often more complex ones, sometimes drawing on multiple legal traditions from different countries. (Nuremberg indeed adopted more flexible standards such as, ex-post-facto justice, but this has been widely criticized and corrected in more recent institutions which tend to err on the side of the rule of law.)

Contemporary international tribunals, unlike the Nuremberg and Tokyo tribunals, are also notorious for trying criminals on both sides of a conflict. There are those who would argue that certain US officials should stand trial in the same court for their sins during the same “global war” – just as the ICTY tried and convicted combatants from all sides of the war in ex-Yugoslavia.

If the court Mettraux foresees is indeed another Nuremberg, this would be a significant digression from, rather than an extension of, the normative and legal precedent set by the existing UN and hybrid tribunals set up in the 1990s. I think an international tribunal is a fine idea but I doubt, as he seems to think, that the US can have its cake and eat it too.

What of the practical workings of such a court? Mettraux imagines that:

Those now held in Guantánamo would be placed under international control and their trials held on neutral ground. American and foreign judges and prosecutors with experience in international criminal cases would then be enlisted to provide the expertise required to hear these types of criminal cases. As with the Special Tribunal for Lebanon, it would be paid for by a combination of American contributions and voluntary donations from other nations.

Law professor Michael Kelly, blogging at the Jurist, is skeptical that this would be as easy as it sounds:

“Placing it in Afghanistan (where most of the detainees were captured) would be problematic for obvious reasons. So to would be staffing it with a blend of local and international specialists. Afghanistan is barren of an effective bench and bar.”

But Kelly doesn’t oppose the idea in principle. And he raises another interesting point: the importance of incorporating Islamic jurisprudence into the Statute:

“Participation from the Islamic legal world in the development and functioning of international criminal law institutions is meager. Buy-in from that sector would be critical to the tribunal’s legitimacy. Geographic placement in Cairo instead of The Hague would also be a symbolic and meaningful gesture. The well-developed lawyer class in Egypt could be tapped to assist, as well as the penal system – keeping Islamic convicts in jail in an Islamic country.”

But Kelly cautions against idealism about the process, and I concur. It’s a good idea, but let’s not treat it at any kind of an easy solution – legally, logistically, financially or politically.

Still, to paraphrase both Winston Churchill and Gary Bass, international tribunals are a bit like democracy: the worst form of post-war justice in the world… except every other kind.