In the debate over the value of judicial mechanisms, claims invoked about the nature and effect of international trials have been thrown into sharp relief with the capture of Ratko Mladic. Many of these claims are based on misconceptions and wishful thinking and have been debunked by history and statistical analysis. R. Charli Carpenter explores some of the most important fallacies in the ongoing debate.
MANY Americans rejoiced upon hearing news of Osama bin Laden’s death on May 1. President Obama announced that “justice had been served.” But when Ratko Mladic was captured yesterday – an individual whose alleged crimes against humanity dwarf those of al-Qaida – it was hailed as a triumph of a different sort of international justice.
The satisfaction over Mladic’s capture recalls claims by human rights and humanitarian law advocates who criticised the bin Laden execution as a form of faux “justice”: Bin Laden was a criminal, they argued, and both justice and peace would have been better served had he been tried and punished rather than summarily executed. Such a trial, it is argued, would have been likelier than an execution to deter future atrocities and delegitimate jihadist terrorism.
This argument has been met with various counterpoints: a trial would have been impossibly messy and politicised; it would have become a “media circus” and possibly a terror target. It may not have proceeded at all due to jurisdictional and evidentiary complications. Had it proceeded, it would not have deterred future attacks but rather invited a global legal and political debate about whether or not bin Laden’s ends or means were justified. This might have weakened, instead of strengthened, international norms against terrorism.
In the debate over the value of judicial mechanisms, both sides invoke claims about the nature and effect of international trials – claims thrown into sharp relief with the capture of Ratko Mladic. Many of these claims are based on misconceptions and wishful thinking and have been debunked by history and statistical analysis. Here are some of the most important fallacies in the ongoing debate.
MYTH #1: OBL Could Never Have Received a Fair Trial. Those making this argument tend to assume that bin Laden would have been tried in the United States. It is true that he would be unlikely to receive a fair trial in either a US civilian court (where it would have been difficult to find a jury of his peers who were not biased) or a military commission.
But these are only two on a long menu of options for putting those accused of crimes against humanity on trial. Bin Laden could not have been tried at the International Criminal Court (it didn’t come into force until 2002) but the UN Security Council could have established an ad hoc international tribunal, similar to those established after the Bosnian war or the Rwandan genocide. Or, it could have established a "hybrid" tribunal, like those set up to prosecute perpetrators in Cambodia or Sierra Leone – combining elements of international and local judicial traditions and personnel. A court for bin Laden might have been shaped, for example, by a combination of Western and Islamic legal traditions, since it has been shown that the best way to marginalise criminals is to hold them accountable to their own standards, and Islamic law also prohibits the killing of non-combatants. And it might have included judges from the Western and Islamic countries, since a significant number of bin Laden’s victims have actually been innocent Muslims.
However such a court were constituted, the ad hoc model provides an answer to those who believe a fair trial was impossible or infeasible. Shortcomings aside, it allows the Security Council the flexibility to tailor a court to the situation at hand, balancing law and politics. Logistically, such a court could have been seated anywhere in the world willing to offer soil and facilities, with any sort of statute on which the Permanent Five and two thirds of other members could agree. It should have been no harder to secure than any other military installation, given the tremendous political will and resources of the world’s last remaining superpower. The court’s mandate could have been as broad or narrow as the Security Council envisioned; its judicial procedures could have been tailored to the case at hand, resolving concerns that bin Laden would have been difficult to convict under US law. (Many international tribunals, for example, permit hearsay evidence, which is not permitted in many national courts.) The Security Council could have chosen carefully how to construct a court most likely to be perceived to be fair and yet just, by constituencies around the world.
MYTH #2: OBL Would Simply Have Used the Court as A Way to Promote Jihadism. No doubt he would have tried to do so if given the chance: many indicted world leaders have trumpeted their respective ideologies, and in the case of both Slobodan Milosevic and Saddam Hussein this did have the effect of galvanizing their constituencies. But it is not at all clear trials need have had the effect: as Michael Sharf argues, it is possible to design ad hoc tribunals so as to avoid these pitfalls. For example, the architects of such a court can disallow or minimize the defendant’s ability to use the stand as a soap-box: the right to represent one-self is not enshrined in international law. And internationalised tribunals are generally viewed as more legitimate and fair than those organised by a party to a conflict, like the Iraqi High Tribunal – making it harder for defendants to claim the courts are simply tools of the victor.
A properly conducted international trial would have been well within its means to forestall demagoguery. Moreover, in the court of global public opinion such a trial would have represented an opportunity for the international community as well as a risk. Personal and expert testimonies from former jihadists, moderate Islamic scholars and lawyers, and Muslim victims of attacks could help undermining claims made by bin Laden or his lawyers that the court constitutes merely a puppet of the West. Such trials have been shown to have an important socialising effect in affirming international norms. Bin Laden’s trial could have reaffirmed the common normative standard of non-combatant immunity shared both by Islamic and Western legal traditions as well as international law.
Myth #3: A Trial Would Have Become a Focal Point For Further Attacks. Precisely because no international tribunal has ever been created to try a non-state terrorist accused of a crime against humanity, it is hard to evaluate this claim for this type of conflict. However, critics of international tribunals as post-conflict justice mechanisms have often made the same claim: that trials can exacerbate ongoing conflicts by making it difficult to contain spoilers and providing the perpetrators’ in-group with a propaganda tool. The implication of this hypothesis is that the existence of trials should correlate with more human rights abuses and longer conflicts. But empirical evidence from trials for conventional wars and for repression within states shows this is false. Kathryn Sikkink and Carrie Walling studied the impact of human rights trials on democratic stability, human right and conflict in 17 Latin American countries. They found that trials do not have any of these harmful effects. The same authors’ larger statistical study of 93 countries, with controls for other indicators of repression, found that transitional countries with trials are less repressive than those without, as are countries experiencing civil war. While it is hard to know whether the effect would be the same for an international tribunal for the leader of transnational non-state network, the results from previous trials are cause for encouragement.
MYTH #4: A Trial Would Have Helped Deter Future Acts of Jihadist Terror and Build a Culture of Human Rights. Yes and no. Transitional justice advocates make a package of claims – that trials deter terrorism, that they promote reconciliation, that they marginalise extremists (in this case jihadists) and that they demonstrate adherence to the rule of law. Actually, as Oskar Thoms, James Ron and Roland Paris have shown, scholars don’t yet know much about the validity of several of these claims because systematic studies are rare and findings inconsistent.
It’s not clear, for example, that tribunals deter atrocities (and many make the same argument about domestic judicial processes). A statistical study of 100 countries by Kathryn and Hunjoon Kim strongly suggests trials do deter, both within the countries where the trials occur and also among neighboring countries. However, separate research by Tricia Olsen, Leigh Payne and Andrew Reiter has found that this effect occurs only when trials are combined with truth commissions and amnesties. Researchers continue to explore these relationships, but so far the jury is still out.
However, a number of studies have shown that international trials after a bloody conflict do have a positive effect in one area: they marginalise extremists and encourage the emergence of moderate leaders. Payam Akhavan’s research on the Balkans shows that the ICTY marginalised Serb ultra-nationalism in this way, leading eventually to President Milosevic’s overthrow and extradition. A cross-national study by Jane Stromseth, David Wippman and Rosa Brooks confirms this finding: while international and hybrid tribunals may not fulfill their goal of buttressing local judicial mechanisms, they do serve the broader political goal of delegitimizing perpetrators.
MYTH #5: The Question is Whether Trials Work. A better question is, “relative to what?” Trials may or may not deter, but clearly executions of terror leaders don’t – and they may in fact spur on future atrocities. In fact a study of different decapitation methods for terror groups has found that killing rather than arresting terrorist religious leaders results on average in 73 more people killed in future attacks that would have occurred otherwise. (Only two weeks after bin Laden’s death, Pakistani Taliban militants killed over 80 people in northwestern Pakistan, stating this was an act of revenge.)
What is certainly true is that a wider menu of options for judicial redress, and international justice more broadly, is available than many think. But trials, as a specific type of redress, do involve significant political trade offs. And some of the claims about their beneficial effects by trial advocates – like their deterrent effect or positive impact on peacebuilding– are not yet confirmed by hard evidence.
Yet trials have also been proven to work pragmatically at one thing the US has tried endlessly to achieve in the global war on terror: winning hearts and minds by empowering moderates and isolating extremists. This is the best evidence that upholding the rule of law as a matter of principle can also yield pragmatic gains. In executing Bin Laden without trial, the US missed an opportunity to delegitimise his brand of jihadism, and may instead have turned him into a martyr.
In the final analysis, however, whether summary executions of terrorist leaders are preferable to trials is not a question of pragmatics. It is a normative issue. It is about whether an easy, illegal option with few benefits and certain drawbacks is preferable to a harder, legal option with equally uncertain outcomes. It is ultimately about whether or not the leaders of civilised nations believe they themselves are above the rule of law.
R. Charli Carpenter is Associate Professor of International Relations at the University of Massachussetts, Amherst, and the author of several books on human rights, human security, and gender. She blogs at Lawyers, Guns & Money and the The Duck of Minerva.