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Risky Business: An International Tribunal for Guantanamo Detainees?

JURIST Contributing Editor Michael Kelly of Creighton University School of Law says that the notion of setting up a special international tribunal to try Guantanamo detainees - most recently floated in an op-ed in the New York Times - is not as promising as it might at first appear...

Mssr. Guénaël Mettraux, a respected defense counsel for international criminal tribunals in The Hague, has suggested in the New York Times that creation of an international criminal tribunal would be the best way for the Obama Administration to deal with the Guantanamo Bay detainees. This idea has been floated before, but has not gained much traction. True, it would shore up American support for international law and multilateral institutions, raise our stock in the U.N. Security Council, and finally provide some kind of legal process for those lingering in the legal black hole of Gitmo. But the flipside of this proposition is characterized by extraordinarily lengthy and costly trials probably located somewhere distantly removed from the evidence and witnesses needed for both prosecution and defense. Trials of major war criminals at the Yugoslav tribunal extended for years and cost millions.

And, although I am a supporter of international criminal tribunals, it must be noted that these institutional creatures are not all apples and apples. The International Military Tribunal at Nuremberg established by the Allied powers after World War II, glowingly noted in Mettraux's op-ed, was widely viewed as nothing more than victor's justice. The Tokyo Tribunal moreso. They were important antecedents to today's tribunals, but they were hardly perfect. The Yugoslav and Rwandan tribunals were established in The Hague and Arusha - physically removed from the countries where the underlying atrocities took place so as to neutralize them, and staffed exclusively with international specialists to ensure impartiality. This was, in part, a corrective to the Nuremberg and Tokyo experiences, which took place in the ravaged countries of the defeated powers, and in part necessary in the case of the Yugoslav tribunal as the Balkan wars were still underway when the court was established.

The weaknesses of these experiences were thought to have been corrected by the time so-called "hybrid" tribunals began to walk the international landscape. Tribunals for atrocities in Sierra Leone and Cambodia were located back in the countries in question and staffed with a blend of internationalists and local judges and attorneys. Again, the record of success that emerges is mixed. The Sierra Leone tribunal got off to a good start under the leadership of David Crane, its first prosecutor, but faced with the trial of Charles Taylor, the Liberian warlord responsible for most of the suffering in that area, the tribunal had to send him to The Hague for trial in the face of increasing security concerns, thereby undermining one of the key aspects of the hybrid tribunal model. The Cambodian tribunal has since its inception been beset by political intrigue trickling down from the unstable government in Phnom Penh. Several years on, progress on prosecuting the perpetrators of the killing fields remains elusive.

The new Lebanon tribunal, designed to investigate and prosecute those involved in the assassination of former Lebanese prime minister Rafik Hariri, reflects yet another adjustment. Located outside Lebanon and staffed with 2/3 internationalists and 1/3 Lebanese judges and attorneys, the court's jurisdiction encompasses what amounts to terrorism. This is a new wrinkle, especially as there is no agreed international legal definition for the crime of terrorism. Traditionally, ad hoc criminal tribunals dealt with only the "big 3" - genocide, war crimes and crimes against humanity.

Any international tribunal for Gitmo detainees would have to encompass prosecution for terrorism as well as violations of the laws of war. Placing it in Afghanistan (where most of the detainees were captured) would be problematic for obvious reasons. So to would be staffing it with a blend of local and international specialists. Afghanistan is barren of an effective bench and bar. About the best that could be done is for international judges and lawyers to participate alongside those from other Islamic societies, which would actually be a big step forward. Participation from the Islamic legal world in the development and functioning of international criminal law institutions is meager. Buy-in from that sector would be critical to the tribunal's legitimacy. Geographic placement in Cairo instead of The Hague would also be a symbolic and meaningful gesture. The well-developed lawyer class in Egypt could be tapped to assist, as well as the penal system - keeping Islamic convicts in jail in an Islamic country. But such a venture must be undertaken only with the caveats mentioned above fully in mind.

To the extent that the crimes of the Gitmo detainees occurred after July 1, 2002, prosecution at the permanent International Criminal Court could be an option if its jurisdiction were altered to include crimes of terrorism. That would be a contentious definitional quagmire. But states parties to the Rome Statute that created the court would be well-served to tackle this issue and include it in the ICC's mandate for future use. Domestic prosecution in the U.S. is fraught with difficulty - both legal and political. The Obama Administration is apparently in talks with Governor Jennifer Granholm of Michigan to secure a prison facility north of Detroit to house the detainee population that remains. It is also considering rescuing the military commissions system in Gitmo. There are no good options at this point, only "least worst" ones. Mssr. Mettraux's suggestion, echoing one I made on these pages last year, may be a "least worst" option, but the perils of failure are still quite high. That's no reason not to try, but it would be wise to remain cognizant of them.

Michael J. Kelly is Professor of Law, Associate Dean for International Programs at Creighton University in Omaha, Nebraska, and Chair of the Association of American Law Schools Section on National Security Law. The views expressed here are not those of the AALS.

August 20, 2009

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