The singular point of clarity from all of the submitted essays on the topic of how to seek justice in instances of war crimes and human rights violations is that there are no concrete methods of dealing with such offenses. It is also clear that any attempts to create a mechanism for seeking justice have been countered by those who control the government of the United States. This should come as no surprise since second only to further domination, self-preservation seems to be the primary concern of all administrations in recent history. As those in power continue to reinforce their ability to perpetuate this institution, the efforts to hold them accountable for their actions should continue in equal measure.
John Glaser points out that the international community tends to operate in the realm of anarchy. Groups like the United Nations, the International Criminal Court, and NATO have attempted to tame and control this arena to quite limited levels of success. This seems to hold a small measure of promise for anyone who may seek justice. However, since governments throughout history have tended toward power and control, the current iteration of our own government being no exception, the possible outcomes of a larger version should be concerning. If any of those organizations held any real power, it is feasible to imagine their wielding of it may, however well intentioned, morph into a Leviathan of sorts.
The acts of torture, drone programs, and even in its own way the detention of those seeking asylum within our borders are all done in the name of expanded dominance and control. They seem easy to justify to the public because they are situations happening to people that live in places most will never see. In the case of immigration, the asylum seekers are coming from such obscure places. These situations seem more like scenes from a movie than real and horrific occurrences, happening to real people. In the case of an international governing body, the same distortion in observation seems like a real possibility, not necessarily making them a preferred wielder of justice. Instead of expanding authority to a global level, work should be done to bring some of that anarchy back to our own government in order to decentralize and scale down its authority.
The example of Efraín Ríos Montt being convicted of genocide and crimes against humanity in Guatemala, as explained by Mr. Glaser, should be encouraging for those who wish to see not only an end to such policies, but also accountability for those who orchestrate and carry them out. To many in our culture of immediate satisfaction, the duration of time between the crimes and justice in this case can seem disheartening. Yet, as the abolition of slavery, women’s suffrage, and other similar advances have shown, cultural shifts often take a long time. The Guatemalan people, through force of will and relentless focus, are the reason for this victory. It is tempting to connect our current administration’s obsession with excluding asylum seekers from entering the country—many of whom are from Guatemala—with a fear that their thirst for justice might migrate along with them.
There would be many difficulties in officially prosecuting any of the acts that have been discussed throughout this exercise, as Professor Rowen expertly points out. For example, she notes that civilians lose Geneva Convention protections once they are engaged in hostile action. However, the Geneva Convention calls for protection of any individual rendering aid to any combatant regardless of their national affiliation. Even U.S. service members are required to provide medical care to their enemy. Since none of our current military engagements are against a uniformed force fighting under a flag, it is not a stretch to imagine that their medical aid teams would be equally absent in their traditional uniform or signage. In the case of the “double tap drone strikes,” any prosecutor should be able to establish the corollary and show that their status as medical personnel is clear and should be protected.
One of the often cited arguments in favor of the detention programs, including family separation, is that those incarcerated have committed a crime by entering illegally, even though crossing the border without inspection is a reasonably minor violation. The law, however, states that a request for asylum can be made whether or not a person entered through a designated port of entry or by other means. This law has been upheld for decades. As recently as last December, the Supreme Court stopped the president from attempting to circumvent this part of the law. Even current challenges at the Supreme Court do not necessarily dismiss this concept. Therefore any individual who entered under the rule should be treated as a legitimate asylum seeker. Whether a person is here to seek asylum or to sneak in and look for work, they should be treated with dignity, held in sanitary and humane conditions, and not fear losing their child because of their apparent transgression.
The current president has stated that his policies at the border are intended to be cruel. The nineties saw a similar sentiment in the government’s attempts to deal with immigration. It is clear that a large number of those crossing the border as of late are children, making the admission of cruelty even more grotesque. This combined with the squalid conditions in which they are kept should make a decent case for child endangerment and other similar charges to be filed by a willing prosecutor.
When deciding whom to punish and to what extent, there are many circumstances to review. As pointed out by Professor Rowen, command liability is one of the main avenues for assigning blame. This makes sense in cases of military and law enforcement because those in positions of authority are trained and tasked with knowing laws and regulations and making sure they are applied correctly. This does not mean the lower-level actors are not responsible for their actions, although some thought should also be given to what seems to be an attack on whistleblowers. With high profile examples such as Reality Winner, Chelsea Manning, and Edward Snowden, the lack of outspoken opposition to current policies is not surprising. This is not an attempt to justify the “just following orders” defense, but a circumstance that should be taken into account when assigning blame. The real tragedy is that the individuals who orchestrate and implement policy should face the harshest punishment, yet they seem perpetually immune to it.
There have been examples of states suing the federal government for what they considered overreaches of authority. Massachusetts sued over the issue of marriage equality. Texas had a litany of lawsuits during the previous administration’s time. A U.S. Army Captain even sued the federal government over its expansion in military engagements with the so-called Islamic State. These lawsuits have had varying degrees of success, but the point is they are sending a message that injustices will not go unopposed. Whether you pick up a sign and protest, pick up a pen and write, or pick up your phone and call your representatives, you can do something to bring about justice.