The Case for International Criminal Tribunals

Authored by: Teresa M. Dettloff

While far from perfect, the international legal system, as it continues to develop, has brought many war criminals to justice for committing war crimes, crimes against humanity, and grave breaches of the Geneva Convention (grave breaches of the Geneva Convention are often not charged currently in lieu of charges of crimes against humanity and war crimes). International Criminal Tribunals are the organs responsible for disseminating international legal jurisprudence. Criminal law (or ICL in the international context) is the practical application of International Humanitarian Law (IHL) in that it gives IHL a backbone; criminal tribunals impose real, criminal consequences for violations of IHL.

Despite the argument that international criminal tribunals lack the enforcement capabilities to prosecute war criminals successfully, the International Criminal Tribunal for the Former Yugoslavia (ICTY) has had pronounced success in bringing war criminals to justice. As of July 2011, there were no fugitives from the ICTY, meaning that all 161 individuals indicted under the ICTY have been accounted for, whether they have stood trial, are awaiting trial, or were pronounced deceased. The ICTY alone has sentenced 83 individuals for war crimes and crimes against humanity, and 14 additional individuals are serving out their sentences in domestic jurisdictions. The International Criminal Tribunal for Rwanda (ICTR) has indicted 93 individuals total, sentencing 61, acquitting 10, and referring 10 to national jurisdictions to stand trial. Three individuals died before or while standing trial, two indictments were withdrawn before trial, and three individuals are fugitives.

The most frequent critique of international criminal tribunals, and the United Nations (UN) as a whole, is the lack of enforcement mechanisms to ensure compliance.[1] This fact is true; the UN does not have a police force to enforce it’s own rules, but instead, relies on Member States to deploy their own resources to act in accordance with UN mandates. Under traditional realist doctrine, every country acts in their own interest, avoiding responsibility and collective cooperation. However, the UN, and international criminal tribunals, have flourished in spite of the enforcement gap.[2]

In a perfect world, international criminal tribunals would not be necessary because domestic legal systems would have the infrastructure to prosecute world leaders for grievous misconduct. Unfortunately, many post-conflict countries lack the legal infrastructure to prosecute these types of cases, leading to a necessity for international tribunals.

The legacy of international criminal tribunals is Joint Criminal Enterprise liability—JCE I, II, and III. JCE liability, developed at the ICTY and now used by the International Criminal Court (ICC), is a mode of liability used to hold accountable individuals who never got their hands dirty committing crimes, but facilitated war crimes and crimes against humanity and were members of wide-scale conspiracies involving crimes such as genocide, forcible transfer and deportation, and the like. This type of liability is not as damaged by the enforcement gap as it may appear to be. UN criminal tribunals prosecute well-known and high profile individuals that were ranked as prominent military members or held positions of political power. As often is the case with the conflicts that UN tribunals prosecute, they have been resolved in one way or another, and often the individuals being prosecuted no longer hold positions of power. Local governments are far more willing to comply than it may initially seem.

Even though international subpoenas are not backed up by law enforcement, domestic institutions are holding people accountable, and helping to bring in many of the war criminals responsible for atrocities all over the world. The purpose of international criminal tribunals is not to try individual soldiers for misconduct—it is to hold accountable military and political leaders who are responsible for some of the world’s most heinous crimes, while never actually firing a weapon. Despite the lack of tangible enforcement mechanisms, countries around the world are stepping up. In that sense, ICL is just what IHL needs.

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[1] For a comprehensive study on critiques of international organizations, see Michael Barnett & Martha Finnemore, Rules for the World: International Organizations in Global Politics (Cornell University Press: 2004).

[2] For more on the enforcement gap, see Margaret P. Karns & Karen A. Mingst, International Organizations: The Politics and Processes of Global Governance (Lynne Rienner Publishers: 2010).

Brexit and the Troubling Rise of Right-Wing Nationalist Movements across Europe

Authored By: Mary Macleod

On June 23, the United Kingdom voted to leave the European Union.  The immediate consequences were a vast protest by the 48% of the country that did not want to leave the EU, the pound crashing to historical lows, and the resignation of Prime Minister David Cameron. More troublingly, this vote also signaled the increasing anti-immigrant sentiments felt across Europe.

Moreover, the Brexit vote represents the first time a major European country successfully managed to close themselves off from the rest of the continent in an attempt to halt the flow of immigration to the UK. This vote signals an attempt to limit the number of refugees and immigrants that can enter the UK, and will likely affect the status of the nearly three million EU citizens that currently reside in the UK.

Other countries encouraged by the Brexit vote now want to leave the EU. For years, right-wing nationalist parties, including neo-Nazis, have picked up seats in parliaments throughout Europe. The current immigration crisis, spurred by the civil war in Syria, bolstered the voices criticizing the national immigration policies and the EU policy for open borders across its member states within the Schengen Area.

In France, the right-wing party Front national (FN) promotes protectionist policies, along with extreme anti-immigrant policies. The FN made news in the past for anti-Semitic, racist, and xenophobic comments. Frighteningly, the party received the largest percentage of the vote in France in 2015, with 28%. The current leader of FN, Marine Le Pen, praised the Brexit vote and said it represents the “patriotic” movements sweeping across Europe. Le Pen, who will likely make it to final rounds of the presidential race in France, says she will call for a vote to leave the EU.

            In Greece, Golden Dawn, a neofascist party, holds on to a small, yet disturbing, percentage of the parliament. In Hungary, the Fidesz party with the K.D.N.P., a Christian Democratic party, won the last two parliamentary elections. Furthermore, Jobbik, an anti-immigrant and protectionist party won 20% of the vote in Hungary.

In Germany, the Alternative for Germany party is polling at 12% for the 2017 national parliamentary election. In local elections in Berlin, on September 18, Alternative for Germany won 14.2% of the vote for the city’s legislature. Support for this party within Germany spiked after a rash of sexual assaults by immigrants in early 2016. The leader of the party, Frauke Petry, believes and promotes the idea that Islam has no place in Germany. If Alternative for Germany wins national seats in 2017, it will be the first right-wing party to win seats in the German Parliament since Hitler.

            These movements mirror attitudes that are also gaining traction in America. Donald Trump’s ideas, such as the closing of borders, protectionism, and anti-Islam policies, closely resemble the fervor in Europe. Brexit should serve as a warning that the success of extreme, racist driven right-wing parties is not an abstract possibility, rather it is a present reality. Voters should look to Europe and be very disturbed by the rise of right-wing parties. Moreover, the ascent of nationalistic and xenophobic ideals that have not been seen since the 1930s should trouble everyone because it signals the return of a horrible movement that the global community should struggle against.

France Declares War on ISIS—What Happens Next?

Authored By: Elena Sakelaris

           France has become a hot-bed for terror attacks, leaving many individuals to ask “why is France continuously targeted”?  There are several reasons: it's a Western Nation, its large population, its popular tourist sites, and it being traditionally Christian.  Some have argued that France’s secularist policy has also prompted these attacks.  France instituted a policy in which all religious symbols were to be limited in public; however the policy is not equally applied, and has mostly been applied to Muslims.  What is significant now is that France is repeatedly targeted, the reasons why really do not matter.

            France is in a state of emergency. In 2016, France has experienced eleven documented terror attacks.  The most significant was the attack on July 14^th on Bastille Day in which 86 people were killed as an attacker drove a truck through the crowd.  Immediately after this tragedy on July 26^th, a priest was murdered during Mass in Normandy.  These terrorist acts prompted different responses, which many found interesting that after the massive attack in the South of France the nation was in a state of emergency and mourning, but no concrete actions military or otherwise were undertaken.  However after the attack in Normandy President Hollande stated that ISIS had declared war on France.  Why did the attack in which one man was killed prompt the President to finally acknowledge that ISIS was waging a war?  The answer is that attacking a religious institution is considered a very serious violation of customary international humanitarian law. 

            Religion is considered cultural property, which is protected under IHL.  Attacking the priest during Mass is a gross violation of IHL.  This was an instance of targeting a specific religious entity completely uninvolved in any military conflict.  That being said, the reality is that terrorists are attacking protected persons.  Their goal is to cause destruction and fear, attacking innocent civilians at the Bastille Day celebration is horrifying, but the Normandy attack makes an even bigger statement.  People have the perspective that they are safe within their church; people want to believe there is a line that even a radical terrorist would respect.  This is an ignorant dream.  The reality we now face is one in which extremists have stated they seek the destruction of the West including Christianity; they will do whatever it takes to achieve this goal.  The assault on common decency is such that a strong response is the only one available.

            What does this ultimately mean though?  France has not mobilized troops to take out ISIS.  France is not marching into battle.  France has increased airstrikes and has bolstered support for Iraq’s military. Only time will determine if these actions are effective.  War has changed, especially with radical groups like ISIS in which we are no longer fighting a rogue nation, but now we are fighting stateless terrorists and violent ideology.  The fight against ISIS to come will not be easy.  ISIS will not be dissuaded by statements of being at war.  Nations can no longer simply state that the attack is devastating or that the “nation remains strong”; strength has to be shown in order to ensure that ISIS knows it will lose.  Extremism will ultimately fail, extremists are never truly united.  No nation can win this war alone; a united West fighting a common enemy would show that we are not afraid and will not live in constant fear of attack. 

CVE in schools – teachers as an extension of law enforcement

Authored by: Alison Davis
         
             As the academic year begins across the country, the abilities of students and teachers to effectively learn and teach are at risk due to disabling and invasive countering violent extremism (CVE) programs. And the traditional tendency of the courts to allow extraordinary concessions of civil liberties in the name of national security suggests that this is just the beginning.

The Federal Bureau of Investigation has created a website designed to help students and teachers identify those who they determine to be at risk of turning to extremism, essentially taking steps to police thought and turn teachers into modified law enforcement. As it stands, the website encourages reporting of people who use multiple cell phones, discuss traveling to “places that sound suspicious,” photograph government buildings, or use unusual language. These broad guidelines foster ignorance of other cultures and breed discrimination based on language and nationality. In the US, a country that prides itself on diversity and inclusiveness, these risk factors lack logic.

Although the US has yet to mandate any reporting, it provides questionable guidance to educators in an effort to combat radicalization due to educators’ unique position to impart affirmative messaging. This guidance is written by the FBI with no indication that the Department of Education, teachers, students, or parents participated or that the best interests of the child were considered.

            The CVE Guide is used once a community is placed under observation. Educators and public servants are asked to assist in determining the degree of risk of a particular family, community, or individual. The CVE Guide provides a Rating Risk and Resilience Factors checklist that social service providers – including teachers – can use to determine the degree of risk posed, on a scale of 1 to 5 in categories such as Experiences of Loss; Hopelessness, Futility; Perceived Sense of Being Treated Unjustly; Withdrawal from Former Activities, Relationships; and Connection to Group Identity (Race, Nationality, Religion, Ethnicity). It is peculiar that the risk factors for CVE are also the same factors that would prompt a teacher or any social service provider to provide more care to a child, not report a child to law enforcement. Furthermore, the CVE Guide is heavily influenced by and even references the abrasive and controversial UK Prevent Strategy, which goes to far as to impose a legal duty on educators to report children who they suspect to be at risk of subscribing to extremist ideologies.

            Although these products all serve as tools for teachers and do not impose legal duties at this point, they serve as an impetus for discussion regarding whether national security policy should infiltrate the classroom. It should not. There is no consensus as to what characteristics indicate vulnerability to engaging in acts of violent extremism, leaving far too much up to the subjectivity of teachers and peers.  Attempts have been made to quantify and predict who will become a terrorist, however, there is presently no well-founded terrorist risk factor checklist, despite decades of efforts to create one. This reality speaks to the complexity of terrorism itself, a complexity that mirrors other important issues such as gun violence, and one that students should prepare to confront by learning to dialogue effectively about challenging topics, rather than being forbidden from addressing them.