Balancing the law with justice

This article in the New York Times has me musing about the nitty-gritty of the legal framework when it comes to meting out justice for war crimes or genocide. The article is part of the NYT's on-going coverage of the trial of Duch, who we have also discussed. Evidently, witnesses in the trial have been offering jarring and profound evidence, much of which cannot be corroborated and some of which is different from their own depositions. The article refers to the practical issues of the case, where "the testimony of these witnesses has not been vetted by prosecutors, and most have arrived poorly prepared by overburdened lawyers."

How should judges respond? In domestic trials in the U.S., the standards of evidence can be quite high. What is the right way to balance the accusations, when the witnesses are the victims of genocide or mass killing? (After all, there are reasons why there might not be eye witnesses.) These questions carry even more implications because a standard immediate response to accusations of genocide, at least by the media or governments who might then be compelled to act, is disbelief, as Samantha Power has documented.

Genocide Charges in Two Tribunals

Several months ago, when an arrest warrant was issued for Sudanese president Omar al-Bashir, it was issued on the basis of several charges of war crimes and crimes against humanity. The charge of genocide, however, was not among them, even though International Criminal Court chief prosecutor Luis Moreno-Ocampo had requested it. He has just successfully filed an appeal against the reasoning for the absence of the genocide charge. The appeal was made on the basis that the level of evidence of genocide he was held to was appropriate for the trial itself, not the issuance conviction and arrest warrant. Whether or not his appeal is ultimately accepted, it may prove extremely difficult to convince the ICC to rule that genocide has been committed. As International Bar Association chair Mark Ellis highlights, "[Charging one with genocide] requires the prosecutors to prove the individual had a specific intent to destroy an ethnic group."

There is much resistance to the arrest warrant, with or without the genocide charges. It is perceived by many - most vocally by Bashir himself - as neo-colonialist, and in violation of state sovereignty. While many may interpret certain aspects of international law - including Chapter VII of the United Nations Charter and the 1948 Genocide Convention - to override state sovereignty in very extreme situations of violence and oppression, many also insist on the supremacy of state sovereignty in all circumstances. Along these lines, a man from Khartoum giving his name as Mohammad wrote in to the BBC to express the much-shared view that "this is an internal affair in a sovereign country with a judicial system."

In a similar vein, the International Criminal Tribunal for Rwanda has just gotten approval by the UN Security Council to continue hearing cases until the end of 2010. This deadline will probably be extended subsequently for an additional two years, as there are 11 cases currently beofre the judges and many suspected of helping to commit the Rwandan genocide of 1994 are still at large. The Tribunal has thus far issued 38 judgements in its 15-year span (6 were acquittals).

Cruelty

One of the reasons I write for this blog (that is, when I actually do write for it) is to create an opportunity to respond to stuff I'm reading in a thoughtful way. I want a way to create a platform to maintain intellectual accountability but also to provide real incentives for actual writing and thinking.

So I'm reading Kathleen Taylor's Cruelty, a biologicaland psychological examination of why people engage behavior that most folks typically imagine as unimaginable. Torture, genocide, mass killing, that sort of thing. Thus far, the tone of the book (I'm on page 55) is similar to Milgram, Zimbardo, and Browning -- that is, that ordinary people are quite capable of committing horrific and heinous crimes.

Taylor seems to be kind of an academic -- she is affiliated with Oxford University, but has a rather opaque discussion of her credentials on her website. The book is -- thus far -- a fascinating read and follows an interesting narrative structure. As far as page 55, though, I'm not sure what sort of comprehensive theory on cruelty is being offered, nor how or what data might be considered. But this is perhaps an academic's criticism and is certainly premature. I'll think more on that as I move through the rest.

Taylor certainly uses language that I generally avoid in my own writing, though, to smart effect. In a section considered how perpetrators of cruelty rationalize their own place in the process, she includes a long quotation from the Marquis de Sade: "I can agree not to employ force against him whose own strength makes him to be feared; but what could motivate me to moderate the effects of my strength...?" Taylor's commentary? "This is the psychopath's charter: To the strong: I'll be civilized. To anyone else: I'll do what I like, and f*ck you." (p. 55) [Taylor included the "u."]

As I deal with my own copyediting in my book and fret over my careful and sometimes quite laborious writing, I find myself wishing that I had the cojones to drop the occasional f-bomb in there. Would certainly lighten it up a bit.