WAR CRIMINALS AND CONVICTS:
A Review Of Steven Ratner And Jason Abrams's "Accountability For Human Rights Atrocities In International Law: Beyond The Nuremberg Legacy"
By JOANNE MARINER
Steven R. Ratner & Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (Oxford Univ. Press 2001)
Yesterday, making his second court appearance since he was spirited away to The Hague, Slobodan Milosevic reiterated his view that the U.N. war crimes tribunal is simply a "political tool." In a further gesture of contempt for the court's legitimacy, he continued to refuse the appointment of defense counsel. Since, in his opinion, the tribunal is a "false tribunal" and the indictment against him is a "false indictment," why should he play along with the charade by putting up a false defense?
As Milosevic well knows, a lot is at stake in his trial, and not just for him. Indeed, in the view of some hopeful observers, the trial's ramifications may be global in scope making a crucial contribution to an international trend toward justice and accountability for human rights crimes.
With a few notable exceptions, human rights atrocities over the past century have been characterized by impunity, with those responsible for even the most serious crimes escaping punishment. While notoriously abusive leaders such as Idi Amin and Mengistu Haile Mariam remain free, some people view Milosevic's trial as evidence that the legal and political landscape has recently begun to change. However much Milosevic may wish to dismiss the proceedings at The Hague as an exercise in "victor's justice" a form of politics rather than law many observers are taking them very seriously.
Judging by their recent book, Steven R. Ratner and Jason S. Abrams are among the most intelligent and perceptive of these observers. In Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy, the two academics offer a clear, comprehensive, and perceptive appraisal of international law and practice regarding the individual accountability of human rights abusers. While the book's primary focus is on criminal sanctions making it an indispensable guide for anyone wishing to more fully understand the current proceedings at The Hague it also reviews alternative mechanisms such as truth commissions, civil damages actions, and immigration penalties.
A Trend Toward Accountability, But No Revolution Yet
Their book examines Cambodia as a case study, a timely choice in light of that country's recent passage of a law to allow the prosecution of those guilty of Khmer Rouge atrocities. Yet the Cambodia example, the authors emphasize, counsels caution in making claims of a new era of human rights accountability.
As Abrams and Ratner conclude, citing the cases of Sri Lanka, Sierra Leone, and the Congo, among others, "it seems premature to speak of a revolution in favor of accountability." The glaring inconsistencies in the existing regime of international justice make that seem rather obvious. Yet there has, perhaps, been a recent erosion in the rule of impunity. The idea is revolutionary, even if the practical results are not.
The International Legal Regime as an Incoherent Whole
Among its other virtues, Ratner and Abrams' book makes an important point regarding the conceptual incoherence of the existing international legal regime.
Of course, not all human rights violations entail individual criminal responsibility under international law and most people would agree that not all violations should. Even as the Inter-American Court condemns the Chilean government for film censorship, for example, it does not call for the criminal prosecution of members of Chile's official film censorship board. Although Pinochet and his ilk may travel abroad at their own risk, censors the world over have little to fear from crusading Spanish judges.
However, as the book points out, many human rights atrocities of an apparently equivalent degree are treated dissimilarly. The blame lies in the patchwork nature of existing legal rules.
For example, while the murder by a soldier of a civilian during wartime entails individual criminal responsibility under international law, in particular the Geneva Conventions, the murder by a police official of a political prisoner during peacetime does not. Even more surprisingly, under the Torture Convention, the torture of that same prisoner by that same police official should result in international criminal responsibility even though the murder does not. (During Pinochet's stay in London, the irrationality of these rules was on full display in the legal arguments before the House of Lords. Still, the overriding logic of seeing Pinochet in detention overshadowed some of the finer legal points.)
Jobless Torturers: A Variety of Punishments for Abuses
It turns out that there are myriad ways to penalize people for committing abuses. Putting them on trial is one way. But among the other alternatives discussed in the book are civil damages actions and immigration measures such as denaturalization and deportation, aimed at denying safe haven to human rights abusers. Indeed, although the book does not discuss these options, some countries have tried lustration excluding human rights abusers from state employment and even visa denials.
True, this story indicates that the phenomenon of individual accountability is still in its infancy. But as Ratner and Abrams' book so convincingly describes, it seems to be maturing quickly. The authors explain how the speed of developments necessitated the early preparation of the book's second edition (it was first published in 1997). I look forward to a third edition, hoping that it too will be published quickly, and for the same encouraging reasons.