International Criminal Justice by Gideon Boas and Pascale Chifflet, Edward Elgar Publishing, 2017, 235 pages, £ 80.00
How does what has been done, and what is to come, leave the world? Can we really ameliorate the horror of mass atrocity; can our responses be seen as a normative shift toward more accountability and prevention? Or are we merely travelling in circles? (p. x)
Reflecting on international criminal justice in the context of war crimes trials, Gideon Boas and Pascale Chifflet muse:
“[C]an it be said that war crimes trials are a successful method of achieving international criminal justice? Do they at least contribute to ending impunity? Are they really a deterrent for murderous dictators and would be genocidaires? Do they promote reconciliation in transitional communities? Or do they adversely impact on community rebuilding and on victims’ need to establish the truth, to be heard and to take control of their own narrative?” (pp. 7-8, italics added)
In International Criminal Justice, Boas and Chifflet attempt, among other things, to answer this set of questions, or better yet, to lay out and comment on the divergent views held on what is international criminal justice and how to achieve it. Balanced and measured in recounting the views of others, Boas and Chifflet interject their own nuanced and qualified views without imposing them on the reader, allowing space for reflection. If there are strengths to this text – and there are many – this one stands out.
International Criminal Justice is divided into seven relatively short chapters packed with richly sourced information. Starting with the peremptory question of what is international criminal justice, Boas and Chifflet discuss it in the context of history, politics, psychology, responses to terrorism, transitioning societies, and hope. This multidisciplinary approach to international criminal justice helps answer questions of legitimacy and coherence which, as Boas and Chifflet rightly note, are prevalent in responding to mass atrocities. “Any criminal court established as a measure to re-establish peace and security must surely need to contribute to reconciliation and sustained post-conflict measures to stabilize the region.” (p. 6)
This holistic approach to examining international criminal justice is refreshing. It allows the reader (and practitioners) to view international criminal justice not just through the prism of the victim or accused, the prosecutor or defense counsel, or judge. It allows for a better appreciation of the attributes and shortcomings of retributive and restorative justice, and why preference need not be given to one or the other reflexively, and more importantly, why they should not be considered mutually exclusive.
International criminal justice and history. This chapter provides a brief general historical overview of international criminal justice. It is informative, setting out the historical context of how the thinking and responses to mass atrocities of the international community both at the international and domestic level have evolved.
International criminal justice and politics. Candidly undemanding. It is inconceivable that anyone in the international criminal justice trenches worth his or her salt would deny the role of politics in just about every aspect of determining approaches: to ascribing responsibility and accountability, to who should be targeted for prosecution, to the temporal and territorial jurisdiction, and so on. The courts cannot be taken out of politics, nor can politics be taken out of the courts. Reality. “Politics dictates expressions of international criminal justice and in doing so shapes our consciousness about where, why and how it applies. Of course, what we do only serves to highlight what we do not, but perhaps should, do.” (p. 19) Precisely.
Be that as it may, Boas and Chifflet cogently present a lucid picture showing that despite politics being an integral element of international criminal justice, there is no reason to necessarily despair. Yes, some who deserve prosecution may escape their destiny with a particular international(ized) tribunal or court, but depending on the circumstances, there may be other alternatives, including prosecutions at the national level, or a restorative approach to dealing with past atrocities such as a truth commission. Not perfect. But considering the progress made since Nuremberg in tackling impunity throughout the establishment of ad hoc and hybrid tribunals and the International Criminal Court, there is reason to be optimistic.
Boas and Chifflet pull no punches, offering no free pass to those who may be tempted to argue that the international(ized) tribunals and courts are above politics. They also acknowledge that as a matter of perception – irrespective of politics – the selection of who gets prosecuted (or not) can and does undermine the legitimacy of the results. Above all, they show just how complex and pervasive the issue of politics is – not necessarily because of some preordained destination by those establishing these tribunals or courts, but because it touches (implicitly or explicitly) on just about every aspect of the international criminal justice chain. Recognizing this for what it is does help shape a discussion on how to minimize the politics and how to better ensure that perceptions are not skewed because of a lack of understanding of the challenges faced by retributive justice tribunals and courts.
International criminal justice and psychology. At first blush, being a defense counsel, I must admit I was a little taken aback by the interjection of psychology into the discussion. This may be because my primary (if not exclusive) concern is the rights of my client, the accused. I never paid much attention to the psychological aspects of cases I defended, unless relevant for contextual purposes in explaining an event or action. But as Boas and Chifflet observe, psychology and psychological aspects of a case are indeed essential:
Psychology can offer explanations as to how and why perpetrators of heinous crimes, including genocide, come to engage in behaviour typically regarded as “inhumane”. In the aftermath of such devastation, psychology can also aid in the understanding of the various behavioural and emotional reactions experienced by victims at both the individual and community levels. It can also inform governmental and international bodies of the most efficient and effective ways of promoting the resilience and recovery of those affected by international crime. (p. 21, footnote omitted).
In the context of the psychology of genocide, Boas and Chifflet offer useful insight concerning the prosecution of the perpetrators and the rights of the victims, showing that retributive trials may not necessarily be the ideal (or exclusive) forum, since trials are restricted to finding individual guilt of a crime such a genocide, which by its very nature is a crime of collective participation.
Boas and Chifflet aptly note that trials are not suited for establishing the entire truth or for victims to develop the entire narrative of their experience. The restorative approach may be (on paper) more suited for victims to have their full say, but Boas and Chifflet point out the short-comings of this approach, not least of which is the dissatisfaction borne by the victims resulting from the lack of punishment (retribution) imposed on the perpetrators.
Again, what come across in this chapter is just how complex this issue is, and why, in my opinion, those of us defending persons accused of alleged mass atrocities would benefit from reading this chapter and even drilling down on some of the referenced material.
International criminal justice and responses to terrorism. It may seem odd to be discussing terrorism in the context of international criminal justice, until you consider how states select to tackle terrorism. Recognizing the difficulties in finding an objective definition of terrorism, and acknowledging that terrorism is not an international crime per se, Boas and Chifflet show how – in combating terror and in collecting evidence from suspected terrorists – states readily engage in military action that at best is questionably sanctioned by international law, and are willing to abuse the international human rights of those suspected in being part of any terroristic activity.
The so-called “war on terror”, but also other conflicts, have ushered in a mindset among some states to use military force and creative modalities for attacking, extracting, and interrogating suspected terrorists under the guise of self-defense, be it perceived as actual, anticipatory, or even preventive. The use of such force outside the UN regime as set out by the UN Charter (see articles 2(4), 39, 42, and 51) or customary international law merits consideration when discussing international criminal justice. It goes to the issue of legitimacy, just as the issue of sanctioning torture in extracting information from suspected terrorists goes to the issue of human rights and respect of the norms set out by the UN Charter, the International Covenant on Civil and Political Rights and other international instruments, most notably, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment.
The addition of this chapter on responses to terrorism makes International Criminal Justice timely, providing another dimension to the holistic approach required in appreciating the multi-faceted discipline of international criminal justice.
International criminal justice and transitioning societies. This chapter covers other available tried and tested approaches, such as Gacaca courts in Rwanda, the consultative approach of Fambul Tok in Sierra Leone, and the indigenous healing mechanism of Mato Oput in Uganda. While these approaches get mixed reviews, Boas and Chifflet are careful to note that, as with all other approaches, there is value in stepping outside the box, if what is adopted is based on recognized and accepted cultural, social, and political mores.
International criminal justice and hope – some concluding remarks. The last chapter is more of a wrap-up of the overarching theme that permeates International Criminal Justice: there is no silver bullet when it comes to international criminal justice in the aftermath of mass atrocities. Though there are strengths and weaknesses in all approaches, each situation will or should dictate the degree to which retributive versus restorative justice will be pursued. And however these two approaches (and any other local or cultural restorative approach) adopted for any given post-conflict / post mass-atrocity instance are boutiqued, questions will abound as to whether international criminal justice was achieved.
Aside from enjoying reading International Criminal Justice, which I found very informative and worthwhile, Boas’ and Chifflet’s overarching thesis reminded me of what I wrote some 20 years ago concerning the Rwandan atrocities and how best to achieve a sense of justice and a sense of understanding; good to know I might have been onto something:
In addition to trials, Rwanda must institute structural reforms, erect museums and monuments memorializing the inhumanities of the “final solutions,” form a truth/genocide commission for a systematic accounting of the events, create a national human rights watch agency to monitor complaints and assist HRFOR [United Nations Human Rights Field Operation in Rwanda] in accomplishing its mandate, legislate a legal aid institute to provide effective legal assistance to the accused, and establish a legal awareness educational program at the grassroots level that would focus on changing behavior through empowerment with legal knowledge — use the legal process, not the machete. This multifaceted approach to justice allows for accountability without retribution and rehabilitation through awareness. (Rwanda’s Quest for Justice: National and International Efforts and Challenges, The Champion, May 1997)
International Criminal Justice is thought-provoking, well-written, and exceptionally useful to both students and practitioners. I especially recommend this gem of a text as a primer for any law course that touches on international criminal law or international criminal justice. Indeed, this would be the ideal text for a short seminar on international criminal and transitional justice.