JiC Hits 10,000 Followers – Thank You!

Justice in ConflictDear readers,

JiC has just hit 10,000 subscribers over its various platforms. Thank you, from the bottom of my heart and the tips of my fingers, for everyone who follows us on Facebook, Twitter or directly on the blog. Your readership and interest is humbling and massively rewarding.

Upwards and onwards!

- Mark

Posted in JiC News | 3 Comments

On the Table: Trading Justice for Peace in Palestine

(Photo: Kevin Lemarque / Reuters)

(Photo: Kevin Lemarque / Reuters)

In the wake of this week’s elections in Israel, Palestinian officials have exclaimed their intention to “intensify” their diplomatic campaign against Israel and bring forward charges against Israeli officials to the International Criminal Court (ICC). Could Palestine’s decision to pursue international criminal justice threaten the Middle East peace process? Or could it salvage moribund peace talks via a trade-off of ICC justice for peace between Palestine and Israel?

An Electoral Defeat of the Peace Process?

Anyone in favour of reviving the Oslo peace process is almost surely disparaging the results of Israel’s election which secured Benjamin Netanyahu a fourth term as Prime Minister. Fearing he would lose a tight race on the eve of the election, Netanyahu relied on the xenophobic strategy of asking Jewish Israelis to take up an electoral, voter-turnout war against the apparent bus-loads of Arab-Israeli citizens voting against his party. At the same time, in order to shore up the radical right of the political spectrum, Netanyahu declared that, if elected, he would never recognize a Palestinian state. To do so, he insisted, was to foster a breeding ground for terror and radical Islam.

It’s clear that the White House had its fingers crossed for a Netanyahu defeat at the polls. US President Barack Obama is apparently convinced that engaging with Netanyahu is futile and has outsourced any contact with Netanyahu to Secretary of State John Kerry. The White House criticized Netanyahu’s “divisive” rhetoric in the lead up to election day and is vehemently at odds with the Israeli leader’s position against recognizing Palestinian statehood.

Still, it may be premature to call the Oslo peace process dead. According to John Hudson and Colum Lynch, Washington may be preparing to ramp up efforts to push for a two-state solution at the UN Security Council. What are they using for leverage? The International Criminal Court.

The deliberations over the future of the U.S. diplomatic efforts are playing out just weeks before the Palestinians are scheduled to join the International Criminal Court, a move that is certain to heighten diplomatic tensions between Israel and the Palestinians. On Wednesday, the Palestine Liberation Organization’s top diplomat in the United States told Foreign Policy the Palestinians would move forward with plans to use the ICC to try to hold Israel accountable for alleged war crimes during last summer’s war in Gaza. (Israel says it worked hard to avoid civilian casualties, of which there were many, and blames Hamas militants for taking shelter in populated areas.)

“The fact that we have a government in Israel publicly opposing a two-state solution just reinforces our position that this conflict must be handled by the international community,” Maen Rashid Areikat said.

Ilan Goldenberg, a former member of the Obama administration’s Mideast peace team, told FP that Washington might be inclined to support a Security Council resolution backing a two-state solution as an alternative to the Palestinian effort to hold Israel accountable at the ICC.

“If it was done, it could protect Israel from a worse outcome,” he said.

Under this scenario, the United States would seek guarantees from the international community to hold off on ICC activity in exchange for a Security Council resolution outlining international standards for a final peace agreement between the Israelis and Palestinians.

“The Israelis will probably resist and say this is a bad idea, but they could also be convinced that this is better than the alternative,” said Goldenberg.

Specifically, the US appears interested in having the UN Security Council defer, under Article 16 of the Rome Statute, any investigation (or prosecution) by the ICC of alleged crimes committed on Palestinian territory in exchange for a resolution that galvanizes conclusive peace negotiations. Such a justice-for-peace trade-off would yield a curious blend of both costs and benefits.

Gaza City in 2012 (Photo: Mohammed Abed / AFP)

Gaza City in 2012 (Photo: Mohammed Abed / AFP)

The Costs and Benefits of Trading Justice for Peace

As David Bosco has pointed out, one drawback of trading justice for peace stems from the fact that an Article 16 deferral is inherently unstable. Article 16 requires that the UN Security Council agree to renew any deferral every twelve months. Any Permanent-5 member has the ability to veto such a deferral and it is unclear whether the France or the UK (both ICC member-states) would be willing to support an Article 16 deferral – now or in the future. At the same time, while a deferral may work once, there’s no guarantee it would work down the line. Indeed, if relations between Russia and the US continue to deteriorate, would Moscow throw in the wrench a year or two from now? It seems entirely plausible. Continue reading

Posted in Article 16, International Criminal Court (ICC), International Criminal Justice, Israel, Palestine, Palestine and the ICC, Peace Negotiations, Peace Processes | Tagged , | 2 Comments

Why the ICC Won’t Prosecute Museveni

ICC Chief Prosecutor Fatou Bensouda with Ugandan President Yoweri Museveni (Photo: Daily Post)

ICC Chief Prosecutor Fatou Bensouda with Ugandan President Yoweri Museveni (Photo: Daily Post)

Anyone who has visited and spoken to the citizens of northern Uganda will be well aware of the harrowing stories of abuse and devastation wreaked by the vicious twenty-five year war between the Lord’s Resistance Army (LRA) rebels and the Government of Uganda. They will also be readily reminded that atrocities were perpetrated by both sides of the conflict. While the LRA is notorious for its brutal tactics of maiming its victims as well as kidnapping and enslaving children, at the height of the war, more people were dying from the conditions imposed on them in enforced displacement camps than from rebel attacks.

Yet the dominant narrative of the war in northern Uganda ascribes responsibility for atrocities – and the war – solely to the LRA, a framing of the conflict that has been compounded by the involvement of the International Criminal Court (ICC). While it would be absurd to defend the cruelty of LRA or deny the need to achieve accountability for their crimes, the dominant narrative’s neglect of state-perpetrated atrocities, has been lambasted by human rights groups, civil society organizations, and close observers of the war.

From the outset, the ICC showcased a bias towards the Government of Yoweri Museveni. In 2004 and following months of negotiations, then ICC Chief Prosecutor Luis Moreno-Ocampo infamously held a joint press conference with Museveni to announce that Kampala had referred the LRA to the ICC. This was no accident. Moreno-Ocampo was made aware by his staff of the appearance of partiality that this would create. Moreover, while the referral was later amended to cover the “situation in northern Uganda”, severe damage to the independence of the Court had been done. To many in northern Uganda as well as the Court’s supporters, the Prosecutor had shown his true colours: he would only prosecute the LRA and only the LRA. In 2005, five arrest warrants were issued, all for senior LRA commanders, including leader Joseph Kony. To this day, the ICC has never emerged from under this cloud of apparent bias towards the Museveni Government. Recent events won’t foster much hope that it ever will.

The decision to target only the LRA was strategic on the part of the Prosecutor. The ICC does not have its own police force nor the capability or capacity to conduct investigations without state cooperation (also see Alex Whiting’s incisive comment to this article below). As a result, it is often predisposed to investigating enemies of the referring state. Indeed, in every instance of a state referring itself to the Court, only rebel groups and government adversaries have been targeted for prosecution.

The logic here is rather simple: if the ICC were to attempt to prosecute state actors – such as the Government of Uganda and its military, the Ugandan Peoples Defence Forces (UPDF) – it would almost certainly and immediately lose state cooperation to conduct any investigations and thus achieve any justice. While the ideal is to prosecute all sides responsible for international crimes, it may not be the most pragmatic course of action to take. Put another way, perfect justice cannot be the enemy of any justice.

Museveni with former Chief Prosecutor Luis Moreno-Ocampo

Museveni with former Chief Prosecutor Luis Moreno-Ocampo

This position seems to guide the ICC’s Office of the Prosecutor. Indeed, Deputy Prosecutor James Stewart has described his office’s approach as such:

The Prosecutor… has always made it clear that she intends to look at all sides of the conflict. Sometimes you just can’t do everything at once. You have to make a choice between action and paralysis and between pragmatism and ideals. And I think if you choose pragmatic action, you really shouldn’t be criticized. But in the end, I suppose history will tell us whether or not the OTP has acted appropriately.

Here it is also noteworthy that, in Kenya, where the Court managed to target both sides of the 2007/08 post-election violence its cases have floundered, most spectacularly with the collapse of the case against President Uhuru Kenyatta.

Implicit in the ICC’s pursuit of a rather careful strategy is a story of progress: the Court must be pragmatic and imperfect now in order to achieve its ideal and perfect justice later. This should suggest that the Government of Uganda and the UPDF will eventually be prosecuted. But when will the ICC be mature enough to stand up to state actors? After all, it has been ten years since the ICC issued its initial arrest warrants against LRA commanders. Moreover, current Chief Prosecutor Fatou Bensouda recently reiterated that her office would investigate, “in complete independence and impartiality… all sides” involved in the war. Reality, however, is unlikely to meet this lofty rhetoric. Continue reading

Posted in Fatou Bensouda, ICC Prosecutor, International Criminal Court (ICC), Lord's Resistance Army (LRA), Uganda | 4 Comments

The ICC’s Crisis Mentality and the Limits of Global Justice

We are thrilled to welcome Barrie Sander as a regular author and contributor to JiC. In his latest post, Barrie examines how the ICC is a Court that was built to react and respond to emerging crises. Keep an eye out for more from Barrie in the coming days and weeks!

Chief Prosecutor Fatou Bensouda (Photo: ICC)

Chief Prosecutor Fatou Bensouda (Photo: ICC)

Last week, Mark characterised the International Criminal Court (ICC) as the kind of institution that needs to be in crisis. From that perspective, the most relevant question for the ICC is how it manages the crises it confronts. This post explores how the ICC is not only an institution in crisis, but also an institution that reacts and responds to crisis.

The ICC’s Crisis-Mentality

The ICC has tended to focus its resources on crisis situations, on situations of ongoing violent conflicts (e.g. Uganda, Darfur, Libya, Mali, Democratic Republic of Congo, Central African Republic) or recently expired periods of violence (e.g. Kenya and Côte d’Ivoire). To some extent this is understandable since the core crimes of the Rome Statute tend to arise in crisis situations. Yet, while the ICC’s crisis-focus may appear natural, it is also reflective of the workings of certain forms of power.

In particular, the ICC not only responds to crisis situations, it also constructs the terms on which such crises are understood. These terms tend to be reductionist in nature, often leading to what Gerry Simpson has referred to as “hegemonic histories”, myopic accounts of conflicts that tend to align with the interests of powerful states. This reductionism is partially a consequence of the ICC’s institutional design and partially a result of its foundations in criminal law.

Institutionally, while the ICC often proclaims the global and borderless nature of the atrocities it investigates, it is forced to function within a political environment in which state sovereignty remains an important instrument of power. To adopt Antonio Cassese’s famous image, the ICC is like a giant without arms and legs, heavily reliant on the limbs of States to function effectively. Consequently, when the ICC intervenes in a situation, it tends to pragmatically align itself with the interests of the UN Security Council and States Parties by only focusing on one side of a conflict. The danger of this practice has been to facilitate the promotion of simplified characterizations of crisis situations as battles between the forces of good and evil. The ICC’s reductionism is not without consequence. The Government of Uganda, for example, has instrumentalized the ICC’s investigation of the Lord’s Resistance Army (LRA) as a strategy both to delegitimize the LRA’s authority as well as to legitimize its own military incursions in neighbouring States under the banner of global justice.

Moreover, by focusing on the actions of flesh-and-blood individuals, the ICC may inadvertently divert attention from the roles played by a broader range of actors, including corporations, States, and international organisations. Similarly, by focusing on direct violence, the ICC tends to abstract crises from their underlying structural causes, with the risk of mystifying their origins. As Tor Krever has recently put it, “the preoccupation remains with the abnormality of conjunctural violence, rather than the normality of the forces – including economic and legal structures – that lurk beneath”.

The failure of the ICC to deal with more systemic forms of repression is not problematic per se; after all, selectivity and exclusion are inevitable features of all legal institutions. However, when the ICC monopolizes the language of global justice through assertions that it is responding to the “most serious crimes of concern to the international community as a whole”, it is more than a little troubling when many of the crimes that appear to support the interests of the “international community” are relegated to the shadows beyond the ICC’s grasp.

The new ICC premises under construction (Photo: Mark Kersten)

The new ICC premises under construction (Photo: Mark Kersten)

Responding to the Critique of the ICC’s Crisis Mentality

Clearly, some of the above critiques target unavoidable features of the ICC system, such as the limits of its jurisdiction and its inability to control how actors beyond the courtroom attempt to instrumentalize its practices. Equally, however, the ICC does have some room for maneuver in responding to these critiques.

(1) A Revised Public Relations Strategy

First, the ICC could adopt a more careful public relations strategy, one that expressly acknowledges the limits of its interventions in crisis situations. This would require an ICC Prosecutor prepared to self-reflexively draw attention to what she cannot do. Fatou Bensouda has arguably begun to adopt this strategy by using her symbolic power to attribute blame to the Security Council for failing to adequately assist her office with respect to the situation of Darfur. However, the ICC Prosecutor could go much further.

To take another example, in her press release concerning the surrender and transfer of Lord’s Resistance Army (LRA) Commander Dominic Ongwen, the ICC Prosecutor could have avoided painting a reductionist picture of the conflict in northern Uganda as one dominated by “the LRA’s reign of terror”. Instead, she could have reiterated the need for the investigation of alleged abuses committed by Ugandan governmental forces, for non-criminal forms of justice that are better equipped to meet the social and economic needs of those affected by the conflict, and for alternative, more participatory justice modalities that are better equipped to interrogate the structural causes of the conflict.

Critics may argue that, to the extent the ICC Prosecutor draws attention to abuses allegedly committed by Ugandan government forces, she risks losing Uganda’s support and cooperation in conducting its investigations against members of the LRA. But this is a risk worth taking if the ICC is to avoid being depicted as a partial instrument of the Ugandan government. Continue reading

Posted in International Criminal Court (ICC) | Tagged | Leave a comment

A Former Bush Official’s Breathtakingly Absurd ICC Proposal

Former US Vice President Dick Cheney. The kind of official who would benefit from Stephen Rademaker's proposal (Photo: Kevin Mazur via Getty Images)

Former US Vice President Dick Cheney. The kind of official who would benefit from Stephen Rademaker’s proposal (Photo: Kevin Mazur via Getty Images)

Most followers of the International Criminal Court (ICC) likely thought that the days of absurd proposals from US officials to undermine the ICC were at thing of the past. Surely no one would ever propose to do something as politically bizarre as, say, ‘unsigning’ the Rome Statute of the ICC or as futile as investing huge amounts of time and energy into deploying coercive diplomacy to pressure dozens of states into promising that no American citizen would end up be prosecuted in The Hague. No, those days were over. Heck, former Secretary of State Condoleezza Rice went so far as to say that her administration’s anti-ICC policies were like “shooting ourselves in the foot.” Fast-forward to today, the Obama administration speaks highly of its “positive engagement” and supports (at least some) of its interventions. Indeed, the biggest controversy in the US-ICC relationship is whether the ‘one-foot-in, one-foot-out‘ approach employed by Washington is actually hampering international justice and making global accountability more, rather than less, selective.

Then along came Stephen Rademaker, a former senior official in the George W. Bush administration who helped establish the Department of Homeland Security and acted as the assistant secretary of state responsible for arms control and nonproliferation between 2002 and 2006. In one fell swoop, Rademaker harked back to the foolish, counterproductive, and cavalier days of American anti-ICC hostility. In an article published today in Foreign Policy, Rademaker has proposed to make it a federal crime in the United States to prosecute American citizens at the ICC:

Congress should make it a federal criminal offense for an official of the ICC, or a foreign government acting under authority of the ICC, to indict, prosecute, detain, or imprison American military personnel or government officials for alleged war crimes.

Call it a “crime against sovereignty.” Any person indicted for such a crime would become a fugitive from U.S. justice, subject to international arrest warrants and liable to prosecution if brought into U.S. custody. They would, in other words, find themselves in precisely the same predicament as the American they sought to turn into an international fugitive through their official acts.

This isn’t the first time Rademaker has taken on the ICC. In advance of the Kampala Review Conference, where diplomats deliberated the potential for the Court to prosecute the crime of aggression, Rademaker exclaimed that the Court “is manifestly incapable of exercising the responsibility and making the judgments that would come with jurisdiction over aggression.” More recently, Rademaker blamed the ICC’s creators for wanting “an independent prosecutor who would be relentless in the pursuit of international justice, insulated to the maximum degree possible from all other considerations.” He also chimed in on the relationship between Washington and the ICC, stating that “[t]he Court cannot expect—and does not deserve—enhanced U.S. support unless it is fundamentally reformed in ways that transform it into a useful institution.” You can see the trend here. But his latest diatribe truly takes the cake.

Incredulously, and apparently without any sense of irony, Rademaker insists his proposal actually represents an improvement on ICC-US relations. Referring to the 2002 American Servicemembers Protection Act (also known as the “The Hague Invasion Act”), which grants the US President the authority to use “all necessary measures” to repatriate any American citizen prosecuted at the ICC, Rademaker argues that

threatening criminal prosecution in such cases would be a more modest and more credible response than threatening military action, which was the remedy Congress came up with the last time it considered the problem.

A more accurate perpetrator of a "crime against sovereignty"? (Photo: Larry Downing/Reuters)

A more accurate perpetrator of a “crime against sovereignty”? (Photo: Larry Downing/Reuters)

Seething with exceptionalism, the barrage of misguided arguments hits a crescendo as Rademaker implies that any actions taken by US officials or military personnel that are sanctioned by the government should be excluded from international prosecution:

The prospect of U.S. prosecutions of ICC and foreign law enforcement officials admittedly is an unsavory one. But it is no more unsavory than ongoing threats to prosecute Americans for actions undertaken by them pursuant to the constitution and laws of the United States to defend the nation.

Continue reading

Posted in International Criminal Court (ICC), United States | Tagged , | 3 Comments

Yes, the ICC is in Crisis. It Always Has Been.

The ICC. (Photo: ANP/AFP/File Robin Utrecht)

The ICC. (Photo: ANP/AFP/File Robin Utrecht)

It has become increasingly common for scholars and observers of the International Criminal Court (ICC) to state that the ICC is in “crisis”. Conference panels, a host of academic articles, news pieces and op-eds seem drawn towards posing some variation of the questions: “is the ICC… in crisis? …irrelevant? …legitimate?”

There is much merit to the debate. It acts as a useful organizing principle around which to analyze the challenges facing the Court and international criminal justice more generally. Moreover, there is little point in denying the fact that the ICC has experienced a contentious few years and that criticisms of the Court are well-placed.

Just Some of the ICC’s “Crises”

Former Chief Prosecutor Luis Moreno-Ocampo may have put the Court on the map of international politics but he also consistently gave his office the impression of being overtly political and biased. The Court’s first trials were rocky. The trial of Thomas Lubanga was almost dismissed twice on the basis that the prosecution had violated the defendant’s right to a fair trial. In October 2014, the prosecution of  Kenyan President Uhuru Kenyatta collapsed. Many predict a similar fate for Vice President William Ruto. Still others believe that the Court is, in fact, fortunate to not have to prosecute Sudanese President Omar al-Bashir because the Prosecution simply isn’t ready for that kind of a trial.

At the same time, the ICC has been unable or unwilling to open official investigations into states outside of the African continent and doesn’t have access to key situations where, rightly or wrongly, many expect it to intervene – places like Syria, Sri Lanka and North Korea. All the while, the ‘big fish’ indicted by the ICC, such as Joseph Kony of the Lord’s Resistance Army and al-Bashir, roam free. The Court’s arrest warrants against them often appear to be something between a minor nuisance and an opportunity for them to prove their recalcitrance to the international community. To top it off, the Court’s outreach remains weak. Despite two years of apparently ongoing web design, the ICC’s website remains as inexplicably user-unfriendly as ever and the Court’s social media engagements are virtually non-existent.

If we stopped there, it would be impossible not to conclude that yes, the ICC is in crisis. However, that would be unsatisfactory because the debate regarding the ICC being in crisis misses a crucial point: the ICC has always been in crisis and is the kind of institution and project that needs to be in crisis. The question we should be asking is thus: how is the Court managing the diverse array of crises it confronts?

A Court in Perpetual Crisis

Part of the problem of viewing the ICC as being “in crisis” is that it suggests that the Court has “entered” a period of crisis. But the historical record bears out a Court that has existed in a succession of crises since its inception.

When diplomats gathered in 1998 negotiate the Rome Statute, the ICC was already in crisis. Proponents and negotiators were palpably nervous, scrambling to find compromises on crucial issues. Would and could the Court be independent of the Security Council? Would the major powers – the US, China, India, Russia, etc. – kibosh negotiations? Was the world ready for an independent and permanent international criminal court? While compromises were found, even when the Statute was accepted by a vast majority of states in Rome, there was still no clear sense that the Court would ever become a functioning reality. The possibility that it would be nothing more than a paper tiger was all too real.

Indeed, the 60th state ratification of the Rome Statute in 2002, which signaled the Court’s arrival as a functioning entity, came as something of a surprise to ICC supporters. Few, if any, thought the Court would become a reality so quickly. But the Court’s establishment was not only met with pomp and circumstance. There was also a real sense of insecurity in the early days of the institution’s existence. Staff that witnessed the birth of the Court will tell you, there was no guarantee that the ICC would last even a few years.

Omar al-Bashir, indicted by the ICC on charges of war crimes, crimes against humanity, and genocide, seems mostly unconcerned about the Court's arrest warrant against him. (Photo:  Mohamed Nureldin Abdallah / Reuters)

Omar al-Bashir, indicted by the ICC on charges of war crimes, crimes against humanity, and genocide, seems mostly unconcerned about the Court’s arrest warrant against him. (Photo: Mohamed Nureldin Abdallah / Reuters)

Their fears were not unfounded. Under the administration of George W. Bush, Washington notoriously levied a barrage of hostile measures to undermine the Court. Again, the ICC managed to survive this political crisis. For better or worse, in the second half of the 2000s, the relationship between the US and the ICC had thawed. Today the Obama administration speaks highly of its positive engagement with the Court and has voted, from its perch in the UN Security Council, in favour of ICC interventions in Libya and Syria.

As noted above, the ICC also experienced crises in its first trials, especially the Lubanga and Kenyatta trials. Its first interventions at the behest of the UN Security Council were likewise deeply contentious. The Court readily accepted politically tailored referrals from the Security Council, presumably convinced that the cost was worth it if the Council enforced any arrest warrants the ICC subsequently issued. Yet the ICC has ended up with almost nothing to show in both situations referred to it by the Security Council – Darfur (2005) and Libya (2011). In late 2014, ICC Prosecutor Fatou Bensouda went so far as to suspend her office’s investigation of Darfur over the lack of Council interest in supporting the Court’s mandate.

The ICC as a Crisis Manager

ICC advocates often reply that much of the Court’s crises are not of the institution’s own making but rather the result of an international community unwilling to back the still young institution. This is only partly true. While the ICC does not exist outside of international politics and does depend mightily on the support and cooperation of international actors (especially states), it also has institutional agency and thus the ability to choose between a series of options as it manages the crises it faces. So how does the ICC navigate and learn from the crises it faces?

Here, it will come as no surprise that the Court’s record is a mixed bag of successes, failures and open promises. As David Bosco has eloquently described, the Court has demonstrated to the US that it would not step on Washington’s political toes and would avoid intervening in situations where the US had long-standing interests. In response, the US has engaged increasingly (albeit very selectively) with the Court. The ultimate wisdom of this position of “mutual accommodation” remains to be seen, as does how the US-ICC relationship will be affected by the Court’s investigation into Palestine and the use of “enhanced interrogation techniques” by US citizens in Afghanistan.

On its relationship with the UN Security Council, the ICC’s record is also mixed. There is a widespread consensus that both Security Council referrals of situations to the ICC (Darfur in 2005 and Libya in 2011) have done more damage than good to the ICC. Frustratingly, however, the Office of the Prosecutor has not taken the opportunity to take a clear position on the subject or seek clarification for highly politicized referrals by the UN Security Council that exclude citizens of non-member states from ICC investigation and prosecution. The Prosecutor can and should seek the opinion of Judges at the ICC. There is even a precedent for this. When Uganda attempted to refer the Lord’s Resistance Army to the Court, the Office of the Prosecutor requested that ICC Judges interpret the referral as meaning “the situation in northern Uganda”. Continue reading

Posted in International Criminal Court (ICC) | 3 Comments

Justice and Identity: A Retrospect on the Eichmann Trial in light of Israeli Hostility to the ICC

Barrie Sander joins JiC for this post on the Eichmann Trial and Israel’s recent hostility towards the ICC. Barrie is a Ph.D. Candidate in International Law at the Graduate Institute of International and Development Studies (IHEID).

Audience members react to proceedings at the Eichmann Trial.

Audience members react to proceedings at the Eichmann Trial.

In light of the 70th anniversary of the liberation of Auschwitz, last week’s premiere of the BBC’s docudrama, The Eichmann Show, was timely. The film told the story behind the global television screening of the Israeli trial of Adolf Eichmann, a German Nazi who had been tasked with facilitating the logistics of the mass deportation of Jews to ghettos and extermination camps during World War II. In many ways, the Eichmann trial was a groundbreaking event, and despite its much-publicized flaws, managed to encapsulate many of the tensions that continue to grip the field of international criminal justice.

Still, the Eichmann Show was not the only drama to hit our television screens last week, which also witnessed the launch of a blistering campaign by Israeli government officials against the International Criminal Court (ICC). Reacting to the ICC Prosecutor’s decision to open a preliminary examination into alleged crimes on Palestinian territory since 13 June 2014, Israeli President Benjamin Netanyahu denigrated the ICC as an institution that “legitimizes international terror”, while Israeli Intelligence Minister Yuval Steinitz was similarly disparaging, characterizing the ICC as nothing more than “a kangaroo court” targeted against Israel.

In light of these events, it seems an opportune moment to reflect on Israel’s pioneering trial of Adolf Eichmann, a trial that not only had a lasting impact on the future shape of the field of international criminal justice, but also may help contextualize the Israeli government’s current hostility towards the ICC.

Justice as Theatre: Survivor Testimony That Would Reach The Hearts Of Men

More than any trial that preceded it, the Eichmann trial was a global spectacle. As portrayed in The Eichmann Show, the trial was broadcast to individuals around the world, who were able to watch the drama unfold from the comfort of their homes. In her now-infamous account of the trial for The New Yorker, Hannah Arendt compared the trial to a theatrical performance: the opening of each session was announced by the shout of an usher which produced “the effect of the rising curtain”; the judges were seated upon a raised platform, “facing the audience as from the stage in a play”; and the proceedings themselves had an “invisible stage manager” in the form of David Ben-Gurion, then-Prime Minister of Israel, who, though not in attendance, spoke through the voice of Attorney General Gideon Hausner, a prosecutor with a particular “love of showmanship”.

Yet, while the Eichmann trial was a show, it was not a show trial, at least not in the pejorative sense of the term. As international criminal law professor Kai Ambos has remarked, “There is broad consensus in the vast amount of legal literature on the case, and particularly in the English and the German literature, that Eichmann had a fair trial”. The Eichmann trial is better characterized as a show-case trial, what Lawrence Douglas has famously referred to as a drama of “didactic legality”, an orchestration specifically designed to educate the world about the extreme acts of atrocity that had been committed during the Nazi regime.

In line with its pedagogic aims, the Eichmann trial took a completely different orientation to the trial of the leading Nazis that had earlier taken place before the International Military Tribunal (IMT) at Nuremberg. Before the IMT, US Prosecutor Robert Jackson had relied primarily on documentary evidence, fearful that survivor testimony might be subject to charges of embellishment. Moreover, in light of the statutory framework established by the Nuremberg Charter, the Prosecution’s case focused primarily on proving a large-scale conspiracy by the Nazis to commit a war of aggression and tended to downplay the racist and genocidal character of the Nazi regime.

By contrast, the Eichmann trial put survivor witness testimony front and centre in an effort to educate the world about the Holocaust. Holocaust survivor Primo Levi once wrote that SS militiamen would cynically admonish prisoners that even if they were fortunate to survive the death camps, the acts of the Nazis would be dismissed by the public as “too monstrous to be believed”. Ultimately, the Eichmann trial would serve to counter such prophecies of denialism by means of the overwhelming power of survivor testimony. As Israeli Prosecutor Gideon Hausner explained:

In order to secure a conviction, it was obviously enough to let the archives speak […] But I knew we needed more than a conviction; we needed a living record of a gigantic human and national disaster. […] The only way to concretize it was to call surviving witnesses, as many as the framework of the trial would allow, and to ask each of them to tell a tiny fragment of what he had seen and experienced.

For Hausner, only survivor testimony would be able to “reach the hearts of men” and it was therefore imperative to give their voices a prominent place in the trial.

Israeli Prime Minister Benjamin Netanyahu (Photo: PressTV)

Israeli Prime Minister Benjamin Netanyahu (Photo: PressTV)

The orientation of the Eichmann trial towards the testimony of survivors was to leave a lasting legacy on the field of international criminal justice, marking the beginning of the witness-driven approach to atrocity trials. Indeed, the extent to which survivors should participate in international criminal proceedings has subsequently become one of the defining debates in the field of international criminal justice. While witness-driven trials may provide a more vivid picture of what happened during particular episodes of mass atrocity, they also tend be longer, slower and more vulnerable to undermining the rights of the accused. As such, the Eichmann trial remains a symbol of both the benefits and dangers of defining justice in terms of its therapeutic value for survivors within the courtroom and its educational value for the general public beyond it.

Justice as Culpability: The Man in the Glass Booth

If the centrepiece of the Eichmann trial was the testimony of the survivors, it was arguably Hannah Arendt’s critical report on the trial that would spark most discussion about its depiction of the accused.

According to Arendt, during the course of his trial Eichmann became a scapegoat, “not only for the German Federal Republic, but also for the events as a whole and for what made them possible – that is, for anti-Semitism and totalitarian government as well as for the human race and original sin”. Sitting in the glass booth that had been constructed for him in the courtroom, the full weight of the Holocaust was heaped onto Eichmann’s shoulders as survivor after survivor recounted their traumatic tales of horror.

For Arendt, not only was this implausible, but also by depicting Eichmann as a “perverted sadist” and “abnormal monster”, the Prosecution had failed to understand that Eichmann represented a “new type of criminal”, one who was “terribly and terrifyingly normal”. Arendt’s Eichmann was the “perfect bureaucrat”, a thoughtless conformist whose conscience vanished in circumstances where all around him had held the same blind devotion to the Nazi regime. It is with this vision of Eichmann in mind that Arendt famously spoke of “the banality of evil”.

Arendt’s depiction of Eichmann threatened the basic assumption of criminal law that a guilty mind (mens rea) is necessary for the commission of a crime. If one accepts, as Arendt seems to, Eichmann’s claims to have acted out of thoughtless obedience to authority, it is unclear how it is possible to hold such an individual criminally culpable. According to this perspective, Eichmann was just an ordinary man receiving extraordinary orders in very particular historical circumstances (a view that would also find support in the work of social psychologists, such as Stanley Milgram and Philip Zimbardo, in the years that followed).

In response to Arendt’s thought-provoking account, at least two challenges have emerged in the subsequent literature.

First, it is not clear that Arendt’s evaluation of Eichmann’s character was accurate. Gabriel Bach, one of the three prosecutors at the Eichmann trial, has elaborated various episodes in Eichmann’s life that reveal him to be a ferocious racist who, after initially becoming the head of the relevant Gestapo department on Jewish affairs primarily to advance his career, soon became a fanatical anti-Semite, obsessed with ensuring the destruction of the Jewish people. Specifically, Bach points to an attempt by Eichmann to thwart a decision of Adolf Hitler in order to ensure as many Jews were killed as possible, as well as recounting how Eichmann became preoccupied with the killing of Jewish children so as to maximise the probability of eradicating the Jewish people. With these incidents in mind, Arendt’s understanding of Eichmann’s character appears to be more tailored to fit her own theory of how totalitarianism works than an accurate portrayal of the man Eichmann revealed himself to be. Continue reading

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