This month we are pleased to welcome Grant Babcock of the Cato Institute as guest editor.
About this Issue
So admitted then-sitting President Barack Obama on August 1st, 2014, discussing the release of a Senate report detailing the CIA’s illegal torture regime. Strictly speaking though, it wasn’t true—“we” didn’t do anything. Agents of the American government, acting under the advice of the Bush administration’s Department of Justice, “tortured some folks.” And rather than prosecute the torturers and their lawyerly abettors for the crimes Obama recognized they committed, the Obama administration worked hard to make sure they would never face any kind of justice. In a press release accompanying the release of the Bush administration torture memos in April 2009, President Obama wrote:
This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past.
Yes: how dark, how painful for us.
At the same time as he was neglecting to reckon with the crimes of the recent past, Obama was overseeing the commission of new and different atrocities, including extrajudicial killings by flying robot.
Today, the Trump administration has seen fit to bring the words “concentration camp” back into the contemporary lexicon, part of an unrelenting, coordinated assault on immigrants, refugees, and domestic racial minorities in which the cruelty is the point, and legality and morality are moot concerns. Will anyone in the Trump administration ever be brought to justice?
Is there a better way? When agents of the American government commit war crimes and crimes against humanity, what can and should be done? This month’s Cato Unbound grapples with that question.
The lead essayist, Charli Carpenter, is a professor in the Political Science department at the University of Massachusett at Amherst. Replying to her will be a panel of three experts: John Glaser is director of foreign policy studies at the Cato Institute. Joshua Childress was in the U.S. Army and National Guard, and did tours in Iraq and Afghanistan. Upon leaving the military, hetook a job with the U.S. Border Patrol. After coming to a libertarian understanding of the ethics of the job, he felt obligated to resign. Jamie Rowen, also a professor in the political science department of the University of Massachusetts—Amherst, holds a PhD in Jurisprudence and Social Policy from the University of California, Berkeley. She is the author of Searching for Truth in the Transitional Justice Movement (Cambridge University Press 2017).
Please join us in what is sure to be a stimulating issue.
The Anarchy of International Relations
The question of how to hold government agents legally accountable for war crimes and crimes against humanity is among the most important, and toughest, we face. Charli Carpenter provides valuable guidance on the prospects for achieving such accountability, though how to get there practically is a much more difficult issue.
The problem is one of enforcement. And as Carpenter explains, “the key question is political power.” Although today’s international system features supranational institutions and intricate legal covenants and enforcement mechanisms, its most overriding property is anarchy. There is no world government, no sovereign body above states with the authority or power to impartially impose justice on state actors.
In the view of many international relations scholars, this anarchic structure explains much about the way states behave. Anarchy imposes incentives and constraints on states. It is a self-help system, where each sovereign unit is responsible for its own security within a competitive, often ruthless, Hobbesian domain. Arguably, war itself is a function of the anarchic structure of the international system—that is, war occurs because there is nobody to stop it—and unless and until some kind of global Leviathan arises, it will persist (though that impractical alternative implies its own set of horrors).
State sovereignty within a structure of anarchy means international courts lack universal jurisdiction. States must therefore voluntarily submit their own national leaders to criminal liability in the enforcement of justice for international crimes. Understandably, states are not inclined to do this. And even when they do formally submit, there is no coercive body above states that can force observance of international rulings.
In 1933, for example, the League of Nations condemned Japan’s military occupation of Manchuria as a violation of international law. Japan responded by simply leaving the League of Nations. This continues, routinely, to the present day. In 2013, the Philippines brought a case to an international tribunal against China’s expansive maritime and territorial claims in the South China Sea. From the outset, Beijing declared it would not participate in the arbitration and would go on to dismiss the findings of the court when it ruled in favor of Manila.
Big, powerful countries tend to abide by international law when it suits them and ignore it when it doesn’t. Thanks to its unique power position atop the international hierarchy, this is especially true of the United States. In 1986, the International Court of Justice, the UN’s highest judicial body, condemned the United States for the crime of aggression against Nicaragua. The Reagan administration had fueled the murderous Contra rebels and secretly mined Nicaraguan harbors in an attempt to undermine the Sandinista government. The White House ignored the court’s findings, dismissed its legitimacy, and refused to hold official perpetrators accountable.
Washington’s antipathy to international courts is illustrated with stunning clarity by a law Congress passed in 2002 authorizing the president to use “all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court.” In other words, the United States does not even recognize the legitimacy of the court.
Thus, a major flaw in today’s international legal system is that justice is influenced, and often even determined by, power asymmetries. It’s difficult to know how to get around this. The very foundations of the post-WWII international order were only possible because the great powers of the time granted themselves special privileges. Permanent seats on the United Nations Security Council, and veto power to boot, helped ensure the buy-in of the world’s most powerful states.
As a practical matter, the problem of enforcement means that international courts will tend to prosecute crimes selectively, which will generally mean small, weak states are subject to the law, while powerful states can escape accountability. The International Criminal Court’s disproportionate focus on prosecuting African leaders, for example, has garnered widespread criticism. But this double standard merely reflects the difficulty of applying the law equally in an anarchic system.
This doesn’t mean international law is a wholly futile enterprise. International legal standards establishing rules of the road and criminalizing certain conduct in war can reflect existing norms while codifying them to garner greater adherence among states. International law can also establish new norms. This process is not without its achievements.
One obvious solution to the problem of enforcement of international crimes is to turn to domestic mechanisms of accountability. Some countries have just recently demonstrated the power of the rule of law to hold accountable even those in positions of political power. South Korea impeached its president on corruption charges and last year sentenced her to 25 years in prison. In 2013, after a lengthy trial, former Guatemalan dictator Efraín Ríos Montt was found guilty of genocide and crimes against humanity and was sentenced to 80 years in prison. It was the first time a former head of state had been found guilty of such crimes by the domestic authorities in his or her own country.
Incidentally, the United States trained Ríos Montt in the School of the Americas and then the Reagan administration actively supported his regime as it massacred Guatemalans by the thousands. Although it took decades, Guatemala managed to hold its own former leader accountable for atrocities. But there has never even been a serious effort to prosecute those Reagan era officials who were complicit in these same crimes. In fact, Elliott Abrams, one of the officials most closely involved, has returned to government service in a prestigious post at Trump’s State Department.
Although the United States was founded on the rule of law, it is hardly living up to that standard. Back in June, an independent government agency called on President Trump to fire his White House counselor, Kellyanne Conway, for being a “repeat offender” of the Hatch Act, an ethics law prohibiting some executive branch employees from engaging in certain political activity. The president ignored the recommendation. Behind closed doors, according to a Washington Post report last month, Trump promised to pardon any officials working on the border fence if his orders force them to violate federal statutes.
In explaining his decision to pardon former President Richard Nixon after the Watergate scandal, President Gerald Ford said it would be unfair to prosecute a former president. “[P]ublic policy,” he wrote in his memoir, “took precedence over a rule of law.” Likewise, Reagan administration officials involved in the Iran-Contra scandal—the covert program to illegally sell arms to Iran and direct the proceeds to the Contra rebels, in direct violation of an act of Congress prohibiting such aid—got off scot-free. Although an independent prosecutor indicted numerous officials, none of them spent a single day in jail. Those still under threat of prosecution after Reagan left office were pardoned by President George H. W. Bush, who was, as Reagan’s CIA director, himself a party to the crimes.
More recently, President Obama declined to prosecute officials from the George W. Bush administration for their illicit detention and torture program, which violated both U.S. and international law, on the grounds that it was not time for “retribution.” After a UN special rapporteur suggested in 2013 that the Obama administration’s drone bombings may violate international law, the White House boycotted inquiries from the UN Human Rights Council. And when Trump bombed Syrian regime assets in 2017 and again a year later, he did so without authorization from Congress and in violation of Article 2(4) of the United Nations Charter. Hardly anyone suggested he or his administration should face sanction. The Justice Department’s internal policy against indicting a sitting president has become a matter of national debate in the Trump era, raising fundamental questions about the rule of law.
This is not as the Founders intended. As James Madison wrote in Federalist 57, Congress “can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society.” Without equality before the law, he wrote, “every government degenerates into tyranny.”
The prospects for holding U.S. officials accountable for war crimes and crimes against humanity are, sadly, pretty bleak. With its invasion of Iraq, the Bush administration committed one of the most egregious war crimes of the twenty-first century. The damages run into the trillions of dollars and hundreds of thousands of lives. No effort is afoot to bring Bush and his subordinates up on charges.
This suggests imposing the rule of law on government officials who commit grave crimes may require a political and cultural change that Americans hardly seem ready for. Nationalism and partisanship are powerful psychological forces that tend to make citizens not just lenient toward their political leaders, but credulous of their benign intentions. As George Orwell put it in his Notes on Nationalism, “Actions are held to be good or bad, not on their own merits, but according to who does them, and there is almost no kind of outrage—torture, the use of hostages, forced labour, mass deportations, imprisonment without trial, forgery, assassination, the bombing of civilians—which does not change its moral colour when it is committed by ‘our’ side.”
What should happen to U.S. officials who commit, or are complicit in, war crimes and crimes against humanity? Ideally, the American system of justice should hold them accountable to the fullest extent of the law. But agents of the U.S. government are unlikely to embrace the rule of law on their own. They will have to be pressured. Unfortunately, generating enough public support for strict adherence to the rule of law requires people to suppress their nationalistic sentiments and partisan loyalties. It also requires extraordinary integrity on the part of elected officials and civil servants. America in 2019 seems nowhere close to that ideal.
Coming to Terms with What We Have Allowed
As a former soldier and federal agent of the United States Border Patrol, I am intimately familiar with many of the topics discussed in Professor Charli Carpenter’s essay. The question of what to do with those who perpetrate war crimes and crimes against humanity is a haunting and extremely necessary one that deserves an honest answer. I will attempt to provide some perspective to that end. The abolitionist Theodore Parker once said, “The arc of the moral universe is long, but it bends towards justice.” Those words ring true, but likely only because of the work of interested and concerned people who will not allow it to be otherwise.
The lead essay points out that one of the main obstacles to finding justice as it relates to war crimes and violations of human rights is the insulation enjoyed by leaders implementing the problematic policies. In the United States, the common answer for how to deal with crime and punishment is to go bigger, harder, and stronger. Following this attitude to its logical conclusion, many would seek international assistance from institutions such as the United Nations and the International Criminal Court. I must admit, while considering the issue of what should be done and by whom to see that justice is served, it was tempting to dream up some new international committee or oversight body to make sure justice is served. The decision to abandon this approach was made when recognizing a conflict with one of my core tenets of governance, that the United States should not be meddling in the affairs of other countries. It then seemed hypocritical of me to invite representatives from other governments into our own affairs. What then can be done? The focus should be on steps to transform our system and culture into one where accountability is not only possible but also expected.
Human Rights at the Border
Supreme Court Justice Louis Brandeis referred to the United States as “laboratories of democracy,” referring to the reservation of certain powers to the states under the tenth amendment. Some states and municipalities have already begun acting on this principle by refusing to cooperate with federal authorities to enforce immigration laws. California has recently passed a bill banning many private prisons, including several ICE detention facilities. If other states begin to pass similar legislation it would send a clear message to Washington, D.C. that their policies of punishment are unwelcome. Lacking facilities to house asylum seekers would likely force the federal government’s hand to release people on their own recognizance until their court date, as most asylum cases were handled in 2014. This approach would serve as an acceptable form of ameliorative justice.
Professor Carpenter brings up a good point about the efficacy of people coming out in the streets to protest. As horrified as I was at watching the child separations occur, it was encouraging to see the outrage from the public. During that period, I was regularly assigned to the processing center where all detainees are held and entered into the system for prosecution. Each day after child separation went into effect, a new directive would be announced amending the original policy so it was more difficult to remove a child from a parent. After about a week we were advised the policy was no longer in effect. Children would only be removed for issues of safety, roughly the same criteria as under the previous administration. As much as I regret not taking a stand against the policy during my tenure with the Border Patrol, I am grateful for the opportunity to now speak out against its lingering effects and similar policies.
If we, as a population, can set aside our differences of opinion over the minutiae of immigration policy and agree that people, regardless of their situation or status, do not deserve to be treated like animals, I think efforts to close the camps may succeed. Albert Einstein wisely stated, “In matters of truth and justice, there is no difference between large and small problems, for issues concerning the treatment of people are all the same.”
Earlier this year the president spoke to a group of Border Patrol Agents, telling them to turn migrants away and to explain to judges that they did so because the country was full. These statements were not only vapid but also contrary to law. After the speech, management personnel clarified to the agents in attendance that they were to enforce the law as usual, and that following the president’s advice may land them in legal trouble. This should be enough of a signal to those working on the border that they ought to be very careful of what orders they decide to follow. Policies such as separating children from parents, holding people in unsuitable conditions, and denying people the ability to request asylum are continually shown to be not only blemishes on the national image, but also violations of several laws.
Individuals in management positions should be taking the lead on this, but their continued silence betrays their commitment to career over principle. Since management is abdicating its duties, the unions representing the government employees involved should be advising them of the possible ramifications of violating people’s human rights. I’m not suggesting everyone walk away from their career in the same way I did, but to do nothing is to endorse what is happening.
In the interest of holding the highest leaders accountable, to include presidents past and present, work must be done to disentangle the three formerly co-equal branches of our government. For years, the House and Senate have allowed budget and foreign policy decisions, as well as many others, to be usurped by the executive branch. As I write these words, the Supreme Court has announced that, pending the outcome of ongoing litigation, it will not uphold a lower court’s injunction stopping the Trump administration’s ban on asylum seekers who passed through another country without applying for asylum in those other countries. Those entering at the southern border would have passed through countries designated by the president as “shitholes,” making the administration’s requirement of applying for asylum in those countries a confusing proposition. This decision by the highest court leaves open the possibilities that it is either corrupted by executive power (and excessively deferential to it) or attempting to legislate from the bench (i.e. rewriting the law for the Trump administration’s benefit). Either case would be against the intended role of the judicial branch. With checks and balances restored, the law should be able to be interpreted more impartially, making defunding of illegal programs and impeachment realistic options.
If we’re going to get serious about addressing human rights violations, we can’t just focus on the en vogue examples like family separation at the border. I fail to see the difference between the mental harm that occurs to a child who is separated from their parents while seeking asylum and a child whose parent is incarcerated for a crime where there is no victim. The latter situation has been occurring in our country for decades. There are any number of options to address this issue. Options other than incarceration should be given for those with children who are convicted of a non-violent crime or a crime without a personified, external victim. Ending child separation for both border crossings and non-violent crimes should be endorsed and enacted in tandem, with progress on one front used as legal precedent for the other.
Even though I don’t necessarily advocate foreign intervention into the affairs of the United States, it seems to be within the purview of another country—such as Malaysia—to detain and prosecute individuals identified by the International Criminal Court as war criminals. If more countries set up similar obstacles, it may send an important message to the government of the United States. The unfortunate part is that if any country ever acted on such a proposition, they would likely become a target of military action.
The military, under the Uniform Code of Military Justice, has done a decent job at holding accountable those identified as war criminals—at least for those on the lower rungs. Recently, the current president attempted to pardon several individuals convicted of war crimes as a Memorial Day surprise. Luckily, public outrage again stopped him in his tracks before too much damage could be done. For the time being only one of those pardons was issued.
Fortunately for those of us who are concerned about the conduct of our leaders on the international stage, there is no statute of limitations for war crimes or torture. So as Professor Carpenter pointed out, a new individual behind the Resolute desk may be the best chance of holding the myriad leaders—including but not limited to the last few presidents—responsible for their heinous activities around the world.
If a serious effort were made to hold accountable those who commanded such crimes, I would recommend that committees of victims from the affected countries be invited to the United States and allowed to participate in those proceedings. Representatives of populations who were harmed by these illegal policies should have a say in what punishment and justice should look like. Allowing their voices to be heard would be a symbol of good faith to the rest of the world that we are serious about making amends to whatever extent is possible.
A Truth and Reconciliation Commission could be a valuable tool, not only in finding justice, but possibly in one of the most lacking factors in the process, acceptance. In speaking with others about this topic, I unfortunately often hear excuses made for the atrocities we have discussed. The actions are often dismissed as either exaggeration, politicization, or outright fabrication. With this in mind, I would suggest an alternative name to such a commission. While I am not a marketing expert, I do know flyover country and “Truth and Reconciliation” comes off as big government political jargon. My suggestion would be the “Put Yourself in Their Shoes” Campaign, or something to that effect. I’ll leave that one open for discussion, though.
We are a government of, for, and by the people. If any hope of justice exists, it exists in the hands of the people. To that end, we must remind individuals of their power, and public servants of their role in listening to those they represent. The world is watching. If we don’t begin to view the recipients of our nation’s callous policies as people too, the results cannot be in our favor.
 “Albert Einstein: A Photographic Biography” ed. Kenji Sugimoto and translated from German by Barbara Harshav.
The Challenge of Criminal Accountability for Atrocious Policies
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.
When the Most Powerful Nation Transgresses
During the Bush-era “war on terror,” detainees in Guantanamo Bay, Abu Ghraib, and numerous other detention sites were tortured through such techniques as beating, stress positions, sleep deprivation, waterboarding, sexual assault, subjection to extreme heat or extreme cold, and confinement in small coffin-like boxes.
During the Obama administration, deadly drone strikes targeted men and teenage boys merely suspected of crimes, killing numerous civilians—and even allegedly engaging in double-tap strikes of first responders. Most recently, the Trump administration has established a complex of detention camps on the U.S. border that include conditions far worse than the United States is required under the Geneva Conventions to provide to enemy prisoners. The inhumane crowding has been likened to “concentration camps”; Adam Serwer at The Atlantic refers to this as a “historic crime.” Some scholars argue the conditions of internment meet the international definition of crimes against humanity contained in the Rome Statute of the International Criminal Court.
These are crimes the U.S. State Department would (and does) decry when they are engaged in by countries like Syria, Serbia, or Sudan—places where America has supported war crimes tribunals for the perpetrators. What can and should be done, and by whom, to see that justice is served when agents of the U.S. government themselves commit war crimes or crimes against humanity? It may seem that the options are limited, given that the United States is a superpower easily able to withstand criticisms, avoid accountability, and place its actions beyond the bounds of the law by reinterpreting the law itself.
Still, the history of these three recent presidencies shows there are several pathways to justice—but whether and how they can succeed depends on the type of justice, the political will of multiple actors, and most importantly on whether ordinary Americans can resist U.S. government efforts to rewrite international law and morality. The good news is that they have and they can. Americans can build on these successes and learn from missed opportunities.
Types of Justice
There are several ways to think about the question of justice in the face of war crimes and crimes against humanity. When human rights activists think about responding to these kinds of crimes, the first step is usually ameliorative justice. Ameliorative justice involves efforts to assist victims and put crimes to a stop—which, from the perspective of victims, is much better than post-hoc punishment. Non-coercive efforts to stop war crimes and crimes against humanity include protests, international outrage, humanitarian assistance and diplomacy, and judicial redress. In some situations, coercive efforts to stop war crimes and crimes against humanity have included military intervention (in places like Libya or Kosovo) abroad.
Restorative justice seeks to repair the wounds not only to individuals but society in the aftermath of crimes that have taken place. Reparations are an example of restorative justice, as are truth commissions where the emphasis is not so much on punishing perpetrators but on creating healing conversations and acknowledging the wrong that has been done in order to move forward with forgiveness. But other forms of restorative justice matter too, like efforts to educate the next generation about what happened and ensure it never does again.
Finally, punitive justice involves trials and punishments for at least some perpetrators. Under the Geneva Conventions, it is the responsibility of states themselves to try their war criminals, but this makes it hard to try political leaders who order crimes against humanity until after a political transition. In many cases, however, those very leaders have been brought to justice after they left power. Some, like Bosnian Serb leaders Ratko Mladic and Radovan Karadzic have been indicted, tried, and convicted in UN-created international tribunals. Some, like Saddam Hussein, have faced trial and execution (or, like Muhammar Ghaddafi, simply execution) by occupying powers or their own people after an overthrow.
In some cases, like Augusto Pinochet, dictators have faced accountability through the universal jurisdiction process, arrested in and/or extradited to other states when traveling abroad to face trial for their crimes. Yet Pinochet eventually evaded trial for medical reasons, and these efforts are often selective and idiosyncratic. Seeking to systematize these ad hoc approaches and contribute to a rule-based approach to punitive justice, the international community established an International Criminal Court to try the worst offenders of the worst crimes in cases where no other justice was possible. Even so, the patchwork of treaty obligations leaves holes in the net that protect criminals. Omar Bashir, the long-time dictator of Sudan and architect of the Darfur genocide, has been deposed and indicted by the International Criminal Court, but actually arresting him would require the cooperation of African states where he travels—and many are willing to instead give him sanctuary.
In all of these efforts, a key question is political power. Often, international justice for war crimes is meted out most on the losers in any conflict, and humanitarian interventions have occurred only in places where the intervenee is weak and the intervenor expects little pushback. Thus NATO entered Libya, attempting to protect civilians, but allowed Syria to collapse for fear of drawing Russia into a regional war. When it comes to ameliorative justice, the ability to shame, cajole, or sue a country into following the law also depends a great deal on what sort of sticks and carrots can be used to modify behavior. So what happens when the country committing the crimes against humanity is the most powerful in the world?
Obstacles to Justice
The United States wields three forms of power that pose obstacles to the enactment of justice for crimes against humanity in America. The most obvious and least remarkable form is coercive power—the ability to compel others through threat of force or withdrawal of aid. The United States has the most powerful military and spends more on defense than any nation. It uses its wealth to induce less powerful countries to do its bidding. It is inconceivable that outsiders would intervene in the United States to close the concentration camps on the southern border the way that NATO intervened in Bosnia. Thus, U.S. brute power, both in guns and treasure, forecloses certain forms of ameliorative justice.
The United States has also skillfully used its institutional power to render its leaders and military immune from punitive justice abroad. The United States has a veto on the UN Security Council and so could never be the target of a UN-backed ad-hoc tribunal. Nor has the United States signed the Rome Statute of the International Criminal Court, so that technically its leaders are not under the court’s jurisdiction. Although there are cases in which a U.S. soldier or CIA agent might be indicted by the court, the United States has gone to extraordinary lengths institutionally to ensure that would never happen. These include extracting bilateral immunity agreements with numerous countries to ensure they would never turn an American over to the court and even passing a Congressional Act that would legitimize an American invasion of the Netherlands should an American find herself in the dock at the ICC. It would be reasonable to wonder if there were any mechanism at all by which American leaders or even their foot soldiers could be held accountable for crimes against humanity.
Beyond this, America is skilled at exercising a different form of power: what political scientists Bud Duvall and Michael Barnett refer to as “structural” or “productive” power. This form of power does not operate, like institutional or coercive power, in interactions with others, but rather in shifting the meanings associated with concepts. The Bush Administration, for example, not only permitted and endorsed torture, but tried to redefine the concept of “torture” to somehow legitimate its own acts, attempting to reconstitute acts like waterboarding, stress positions, and sexual degradation as “enhanced interrogation.”
The Obama Administration, for its part, continued and accelerated the Bush-era practice of extrajudicial execution of terror suspects with unmanned aerial vehicles, including sex-selective massacres of teenage boys simply for being military-age, male, and suspicious. But Obama and his legal advisors did more than target terror suspects for execution without due process in areas where the United States was not at war. They constructed elaborate legal concepts to try to justify their acts, pretending war law applied where human rights experts said it did not, and framing these acts as “targeted killings,” rather than “extrajudicial executions” as the UN saw them.
The United States under Trump acts similarly in attempting to reinterpret the Refugee Convention, not only flouting the principle of non-refoulement but articulating new obligations of transit countries (often very dangerous places themselves) to take refugees. Meanwhile President Trump has reconstituted asylum-seekers as “illegals”—even though the human right to cross a border seeking asylum is protected under international law, making countries like the United States who deny this right the real “illegals.”
Evidence for Hope
Despite these tactics used by the U.S. government historically to avoid accountability for its war crimes and crimes against humanity, the truth is that history has continued to bend in the direction of justice, and even the most powerful nation on earth has not been able to commit such crimes with impunity, much less convince the international community that its crimes don’t exist. The Bush administration both tortured and attempted to redefine torture, but this stance was never accepted—not by the U.S. Supreme Court, the European Union, nor a plurality of average Americans. While many small countries did sign bilateral immunity agreements under pressure from the United States, many others refused to do so, accepting the resulting loss of U.S. aid.
While it is not likely that any nation will conduct a humanitarian intervention to close Trump’s concentration camps, other forms of ameliorative justice are everywhere and are making a difference. Hundreds of thousands of Americans took to the streets in one weekend this summer to protest the concentration camps; numerous smaller actions take place regularly. Advocacy groups have consistently used the courts to roll back Trump’s worst excesses—and have made gains for detainees. The Democratic wing of Congress has monitored the camps, held hearings, and made human rights of asylum-seekers a key campaign issue. America is not Nazi Germany, where the majority of ordinary Germans shrugged, cheered, or looked the other way.
While no American leader is likely to end up before the International Criminal Court, this is actually as it should be, because punitive justice for perpetrators is possible in America. The Constitution bans inhumane treatment, and cruel and unusual punishment, and it requires due process for all persons on U.S. soil, not just citizens. It also requires the United States to follow its treaties. The War Crimes Act bars U.S. soldiers from committing acts that would violate Common Article 3 of the Geneva Conventions. The Torture Act bars all nationals of the United States from committing crimes that would fall under the UN definition of torture, which includes psychological harm. Courts in the United States regularly take up these issues. Both U.S. soldiers and other U.S. agents could be prosecuted by a future administration under these laws and under the Nuremberg Principles if they obey unlawful orders, such as to arbitrarily detain civilians in inhumane conditions or psychologically abuse children.
Even if the United States never holds such trials, other countries could, if any individuals involved travel there. Under the principle of universal jurisdiction, any country may arrest and try an individual for crimes such as these. In fact, several countries initiated indictments for Bush-era officials—and Malaysia has already found them guilty in absentia. This itself is a form of punitive international justice, as it limits the range of countries to which such individuals may safely travel.
The prospects for justice in the United States should not be overstated, as America has missed important opportunities as well. When Obama came to office, there were calls for trials by Human Rights Watch and other legal-based advocacy groups. But the new Obama administration made a conscious choice not to prosecute Bush-era officials who had developed a policy of torturing detainees. By carrying on Bush-era policies like drone strikes, and continuing the centralization of executive power under the guise of the war on terrorism, Obama set the stage for Trump’s misuse of presidential authority rather than analyzing and reversing the conditions that had led Bush and Cheney to operate with seeming impunity.
In addition, America as a nation has often missed the opportunity to engage in genuine restorative justice in the wake of its darkest moments. To be sure, we have sometimes gotten it right, and the United States has a history of making amends to those we have harmed in combat. For example, during the occupations of both Afghanistan and Iraq, the U.S. government initiated condolence payment programs to make amends to civilians they had harmed in these wars. America could build on this mentality to provide restitution for harmed refugees, torture victims, and those who have lost families in drone strikes.
But instead there has been very little in the way of public restitution for such victims. When Pakistani drone strike victims traveled to the U.S. Congress to tell their stories, very few representatives and senators showed up. Families of those suffering in Guantanamo or Abu Ghraib received few apologies, and less help. When the Chair of the Senate Judiciary Committee, Patrick Leahy, announced in 2009 that the United States should create a Truth and Reconciliation Commission to address Bush-era atrocities, the idea gained little support. And what restorative justice could even mean for children whose brains are being irreparably mal-formed through early childhood trauma and separation, and whose relationships with their families will never be the same, is hard to grasp.
But even in situations far darker than present-day America, restorative justice is not only possible but has been essential in turning back the tide of racism, hatred, and fear that often lies beneath serious crimes against civilian populations. In Germany after the Holocaust, political elites took specific steps to correct for the psychological amnesia that can occur after atrocities. They instituted laws forbidding Holocaust denial; they established museums and memorials; they ensured that every German high school student had toured a concentration camp; and Germany developed a policy of reconciliation and trust-building with the international community as well. Similarly, in South Africa, a Truth and Reconciliation Commission was established to help the country heal from the legacy of apartheid. As documented by Desmond Tutu, the effect of this institution has been to reconstitute South African political culture around a shared narrative of how hard it was on all sides, and how better a racially pluralistic society could be.
The kinds of things that Germany and South Africa have done right are things that other countries like Japan and America have only occasionally tried in the wake of war crimes or crimes against humanity. The U.S. Senate Intelligence Committee’s Report on CIA Torture in 2014 was a step, but these types of efforts reach only the interested few. They are not the same as a public truth commission, broadcast on television networks, to reaffirm international human rights principles and allow victims to tell their stories and perpetrators to acknowledge their wrongs and seek forgiveness in exchange for amnesty. Truth commissions have been used occasionally in the United States—like the 2004 Greensboro North Carolina Commission focused on racial violence—but overall they have not been used widely nor at the national level. This arguably allows societies to maintain narratives of victimhood and grievance that can fuel future waves of identity-based violence, rather than finding shared narratives about the past, as has happened in South Africa and Germany.
If Trump is dislodged in 2020, an incoming Democratic challenger could consider numerous options for justice. And research shows these types of justice are often best served in combination. That person should not only close the camps, reinstate a humane asylum policy for vulnerable families, and provide ameliorative justice for the victims. They should also not shy away from conducting trials of the worst offenders, including high-level U.S. government actors and even Trump himself for crimes against humanity. But for low-level perpetrators who felt they were only doing their jobs, another option is a truth and reconciliation commission to begin the process of nationwide acknowledgement and healing. Through this combination of strategies, “never again” can become, if not a reality on US soil, then a likelier probability.
Let’s Not Keep Making the Same Mistakes
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.
How American Leaders Escape Accountability
Joshua Childress’s reflection on whether prosecutions can occur for U.S. international crimes raises some important points. This response provides some more context for the challenge of bringing charges against U.S. officials for war crimes or crimes against humanity.
Childress convincingly explains how targeting first responders is difficult to justify under the Geneva Conventions since first responders should automatically get protection. After all, humanitarian law was founded on the belief that all militants deserve medical care, regardless of what side they are on.
Even if it is clear that first responders should not be targeted, there are a number of issues with bringing war crimes charges against U.S. officials in U.S. courts. While there is a federal statute that domesticated the Geneva Conventions, the War Crimes Act of 1996 (which was watered down with the Military Commissions Act of 2006 but still outlaws murder and intentionally causing serious bodily harm), the dilemma of whom to charge remains. More importantly, there are issues of evidence if these cases are tried domestically. Obtaining evidence from abroad is very difficult because of concerns about chain of custody and witness testimony. Courts are reluctant to allow in evidence if it cannot be authenticated (basically, if there is doubt that the document or other piece of evidence is what one party says it is), and authentication is very difficult with evidence gathered abroad. Courts are also concerned about evidence that has passed through multiple hands, again because of concerns about authentication.
Partly because of evidentiary issues, there have been no federal prosecutions in U.S. courts for war crimes committed abroad. In addition to the challenges mentioned above, judges also do not like to use video conferencing or other technologies for foreign witnesses because it limits the ability of the accused to cross-examine the testimony in front of the jury. Trials that bring witnesses from abroad are very costly, and a federal prosecutor may be reluctant to expend those resources if the case is not a slam-dunk.
Next, Childress points out that there are many examples of government officials challenging U.S. policy in courts. The examples that he points to are state officials bringing cases against federal officials, and even an individual suing the federal government for its war against ISIS. Tellingly, that latter suit was thrown out because the individual did not have standing.
The dilemma is that the War Crimes Act of 1996 is a federal law. State prosecutors cannot bring cases involving federal law, and there are no parallel state statues that I am aware of that codify war crimes. This leads back to my original argument: a federal prosecutor would have to bring a case against someone else in the executive branch. This may happen in the future, but not presently.
Finally, Childress points out that President Donald Trump is developing his border policies with malice. This may be the case, but it doesn’t automatically lead to an interpretation that the acts amount to a crime against humanity. Under the most authoritative definition from the International Criminal Court, the acts have to be part of a systematic and widespread attack against civilians. Yes, it’s rhetorically wise to refer to it as a crime against humanity, and the detention policies are horrible, but many acts are framed as international crimes when courts disagree. Genocide, for example, is frequently used to describe to mass killing even though it has a specific meaning in the law. Cases for genocide against communists, for example, are recognized in some international courts but not others because laws against genocide do not always protect groups defined by their political thought.
In the end, no one is denying that these are atrocious acts. The challenge, as I see it, is using the very weak domestic and international legal system the United States has to address them as international crimes.