While justice can indeed take many forms, the term “accountability” usually refers to criminal law. The question posed here implies that criminal law is or should be able to address the horrific policies of targeting first responders after an initial drone strike, as well as separating families and caging children at the border. Professor Carpenter appears ambivalent about whether criminal justice for these policies is possible. However, she appears to believe that, in an ideal world, such policies would be labeled international crimes, and trials should occur.
Given legitimate concerns about the criminalization of politics, both domestically and internationally, there are many legal obstacles to holding someone in the United States criminally accountable for these policies and their outcomes. This country’s founders put in place very important safeguards so that criminal law does not become a political tool. Their goals were understandable. We would not want to create a norm in which a newly elected administration puts members of a previously elected administration in jail because of policy disagreements. At the same time, we might want to punish people for particularly atrocious policies that violate human rights under color of law.
In order to explain the difficulty of using criminal law to redress U.S. policies, this essay outlines the challenge of determining what crimes have been committed, where those responsible could be charged and, perhaps most importantly, who could or should face criminal accountability.
What Crimes Are We Talking About?
The principle of legality requires that a crime can only be committed when a rule has been broken, so it is important to understand the rules defining international crimes.
International crimes were originally defined in response to very clear atrocities, with very clear actors. “War crimes” has a colloquial meaning, but its technical meaning is tied to the Geneva Conventions and other “laws and customs” of war. The definition of “war” becomes convoluted when we are talking about the War on Terror. A well-known and liberal law professor, Harold Koh, was Obama’s advisor on this issue. He declared that the drone strikes are legal under international and domestic law because Congress granted the executive the right to engage in hostilities with Al Qaeda and the Taliban. Koh and other lawyers interpreted this to mean that the U.S. military could strike members of such organizations in foreign countries regardless of whether we were at war with these countries. Given that civilians lose Geneva Convention protections when engaged in hostilities, this policy’s defenders would likely argue that first responders are legitimate targets.
Crimes against humanity is a more complicated criminal category, largely because the definition has evolved with the different courts that have examined it. There is no international convention that defines the crime. The current definition in the ICC focuses on particular acts—murder, enslavement, torture, persecution—done with knowledge that they are part of a “systematic and widespread attack on a civilian population.” Persecution is similar to genocide in that there is discrimination involved in who is being harmed. Arguably, Latinos are being targeted by immigration policies. More on point, detention appears to be “imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law,” which can also be a crime against humanity when part of a systematic or widespread attack.
Even if we can all agree that putting children in cages is atrocious and shocks the conscience, calling detention policies a crime against humanity stretches the meaning of the word “attack.” Further, there are criminal statutes against unauthorized immigration. The United States commonly separates families when punishing citizens for domestic crimes, and the Trump administration continues to claim that migrants at the border are not actually protected by domestic or international refugee law. Finally, some commentators point out this separation policy is as horrible as it is because of ineptitude, not forethought, meaning the requisite intent for a crime against humanity may be absent.
Importantly, there is no domestic law on crimes against humanity. An international court would have to be involved if individuals responsible for the detention policies were to be charged with crimes against humanity.
Where Could These Trials Occur?
While some states have delegated jurisdiction to the International Criminal Court, the United States continues to claim that no foreign or international court has jurisdiction over its affairs. Although the United States led the charge at the Nuremberg trials of Nazi leaders, and the Tokyo trials of Japanese leaders, it has resisted any effort to hold its own leaders accountable in a foreign or international venue.
Currently there appears to be no international criminal court able to hold U.S. policymakers, or those enforcing the policies, accountable for their actions. The only court that potentially could is the International Criminal Court (ICC). The UN Security Council can refer a case for prosecution in the ICC if the state in question is not a party to the Rome Statute (the treaty that gives jurisdiction to the ICC). The United States is not a party to this treaty. Yet it is unlikely that any country on the Security Council, including the United States, will ever be tried in the ICC.
That leaves domestic prosecutors using domestic law, or foreign prosecutors claiming universal jurisdiction. A domestic federal prosecutor would have to claim jurisdiction, which would mean that an officer of the executive branch of government would have to bring a case against someone else in the executive branch. This is unlikely to occur.
Universal jurisdiction statutes are based on the same principles undergirding international criminal law—that some crimes are so atrocious that all courts should be able to adjudicate them. As Professor Carpenter notes, Belgium and Spain once brought cases against foreign citizens accused of genocide and crimes against humanity. However, the laws that enabled these cases have since been scaled back considerably. In point of fact, the United States pressured Belgium to repeal its universal jurisdiction law, threatening to remove Belgium’s status as host nation to NATO if it did not.
Who Can Be Charged?
When considering criminal accountability, we are talking about putting individuals in jail. In international criminal law, this means putting individuals in jail for actions committed by groups against groups. In this way international criminal law is distinct from international humanitarian law and international human rights law, which use naming and shaming tactics on states rather than a physical or material sanction on an individual.
Holding individuals criminally accountable for state policies is inherently difficult. Those who may have designed the policies are not usually the ones carrying them out, and those carrying out particular actions may not be the most responsible. As a result, courts have created convoluted theories of liability. These theories include command responsibility, which says that individuals in charge of others committing atrocities are liable regardless of whether they could stop their inferiors. The other theory is joint criminal enterprise, an extension of conspiracy law in the United S. This requires a finding that the defendant’s actions were related to a common plan or purpose that was criminal. Critics regularly point out that these theories of liability go against basic principles of fairness because courts may use them to hold individuals accountable for acts that they did not commit.
There is room for disagreement as to whether the plans behind the drone strikes or the migrant family separations are criminal, even if many find them immoral. However, even if there were agreement on the legality and the morality, who should be held to account? Is Obama responsible for the drone strike policy, the lawyers that gave it the okay, or those pressing the buttons from afar? For detention policies, should it be Stephen Miller, who is often reported as the architect of the migrant separation policy? Should it be Trump himself? What about the guards doing the direct harm? These individuals enforcing the policy may or may not agree with it. As Professor Carpenter has pointed out elsewhere, they often explain themselves as simply following orders and doing their jobs.
Politics, Not Law
So where does this leave us? I think we have to return to Professor Carpenter’s optimistic ending, which requires a different understanding of justice, one that is geared toward political rather than criminal accountability.
One approach could be public investigations in something akin to a truth commission. However, the United States has been loath to use truth commissions for anything related to national security. Even well-organized civil society efforts to create a truth commission for War on Terror detention policies fell on deaf ears at the government level. As Professor Carpenter explains, the nation has continued to confront the legacy of those policies through thorough government investigations. Although individuals continue to suffer at Guantanamo Bay, those investigations bolster the widespread, bipartisan critique of the policies that led to torture.
Hopefully, the democratic process rights these wrongs, and policymakers causing immense suffering are voted out of office in disgrace as new norms emerge about the treatment of migrants and drone strikes. Where formal law is less effective, we must look to other “sticks and carrots.” Voting in new leaders, voting out enablers, and continuing the call for all forms of justice should continue.